







• A>«*c 




0* s!*'% *> 



v, Ts ' A, 



oK 



0* 








v*cy 

















1 • » <i 



^6* 







° A>^ 

*°"Ts A 

• • S 4 > 








** a* **V *VjfL\P* ,<P 



,-tV v * 



o V 



0^ 







<, 



<* '••'i* ,*6 r o *'VvT* A ^ «... 



v-cy 









v*o^ 



V^V ..... V-V..V.V -v 







V * S J^L'* *> V % •!•- 




*° A^ 




»-• ^ .^ *^^^" 




^_ **^' ^ .... ^ * 
















7i* .A 



V ..">. *+. 










^5 ^ 






j.0 ^, *J 



.7 ^°* 






s?^ : . 




1 *l^L'* > v »:• 









'• *W* 








<i> . t / . 




■ • A <* *o.»* «G V V *07T» A <**«».»• ,G V 









:- ^o< « 






r ^ 



v^ 1 






'^ 





^ 








> ^ £ 










^n^ 



'- <^*V 









SOUTH PARK 



ACTS 



GENERAL ASSEMBLY RELATING TO THE SAME, 

AND THE COLLECTION OF THE 

ASSESSMENTS. 

DECISIONS OF THE SUPREME COURT 
RELATING THERETO. 



ORDINANCES 



SYNOPSIS OF IMPROVEMENTS 



SOUTH PARK 



ACTS 



GENERAL ASSEMBLY RELATING TO THE SAME, 

AND THE COLLECTION OF THE 

ASSESSMENTS. 

DECISIONS OF THE SUPREME COURT 
RELATING THERETO. 



ORDINANCES 



SYNOPSIS OF IMPROVEMENTS 






>. 



•-t 



"> 



r x> 






SOUTH PARK 



ORGANIZATION OF THE BOARD, AND ITS OFFICERS, 
JULY 1st, 1875 



COMMISSIONERS 

CHAUNCEY T. BOWEN 
GEORCE W. CAGE 
L. B. SIDWAY 
PAUL CORNELL 
JAMES MORCAN 



OFFICERS 

PRESIDENT CHAUNCEY T. BOWEN 

*AUDITOR GEORCE W. CACE 

TREASURER • • • J. IRVING PIERCE 

SECRETARY • H. W. HARMON 

COLLECTOR WM. L. CREENLEAF 

CEN'L SUPERINTENDENT • W. M. BERRY 

( AYER & KALES, and 

ATT0RNEYS 1 JAMES P. ROOT 

ENGINEER IN CHARGE • J. H. SAMS 



*On the death of Mr. Gage, Sept. 24th, 1875, the office of Auditor became 
vacant. Mr. Sidway has since been appointed to fill the vacancy. 



INDEX AND REFERENCES 



PAGE 

Original South Park Act. Private Laws 1869, Vol. I, p. 358 5 

Supplemental and Amendatory Act. Private Laws 1869, Vol. I, 

p. 366 15 

DECISIONS 

People, ex rel., Wilson vs. Salomon. Reported in 51 Ills., p. 37. . . 18 

People, ex rel., vs. Williams. Reported in 51 Ills., p. 57 33 

Amanda S. Cook vs. South Park Commissioners. Reported in 61 
Ills., p. 115 39 

The People, ex rel., Henry B. Miller, etc., vs. P. H. Brislin, et al. 83 

Francis B. Law vs. The People, ex rel., Henry B. Miller, etc 95 

STATUTES, ETC. 

General Park Act, applicable to South Park. R. S. 1875, p. 733. . 49 

Eminent Domain — Act concerning-. R. S. 1875, p. 475 60 

Revenue Laws, applicable to collection of assessment. R. S. 1875, 
Sees. 887-908 64 

Apportionment of Assessments 66 

Ordinances for Government of the Park 69 

Jurisdiction of Justices and Magistrates. R. S., p. 639, Sec. 14 . . . 73 

History of Organization and Progress 75 

In Memoriam — George W. Gage 81 



SOUTH PARK 

Acts and Decisions of the Supreme Court of the State 
of Illinois relating thereto. 



AN ACT to provide for the location and maintenance of a Park 
for the Towns of South Chicago, Hyde Park and Lake: 

Section 1. Be it enacted by the People of the State of Illi- 
nois, represented in. the General Assembly. That five persons, 
who shall be appointed by the governor of the State of Illinois, 
together with their successors, he, and they are hereby, consti- 
tuted a board of public park commissioners, for the towns of 
South Chicago, Hyde Park and Lake, to be known under the 
name of the South Park Commissioners ; and in case of the 
failure of any of said persons to accept such appointment, and 
to qualify thereunder as hereinafter provided, within sitxy days 
after the passage of this act, the place of such person in said 
commission shall be thereby vacated, and it shall be the duty of 
a majority of the commissioners so accepting, to appoint some 
suitable person to fill the place thus made vacant, which appoint- 
ment, when accepted by such nominee, shall constitute such 
person as a commissioner under this act. And a majority of 
said commissioners shall so continue to nominate until the 
board shall consist of five persons. Each of said commissioners, 
before entering upon the duties of his office, shall take an oath 
to well and properly discharge the duties of his office for the 
interest of the public, which oath shall be reduced to writing, 
subscribed to by him, and filed in the office of the county clerk 
of Cook county. They shall each give a bond in the penal sum 
of fifty thousand dollars, with one or more securities, to be 
approved by the judge of the circuit court of Cook county, to 



6 

the treasurer of Cook county, conditioned for the faithful dis- 
charge of their duties under this act. 

Sec. 2. As soon as convenient after the said hoard shall be 
constituted as aforesaid, the members thereof shall decide by 
lot, at a meeting to be called by any three of them, as to the 
respective terms for which each member shall hold his office; 
the number of lots shall equal the number of commissioners, and 
the person drawing the longest term shall serve for five years 
from the first day of March, A. D. 1869; the one drawing the 
next, shall serve for four }^ears from said date; the one drawing 
the next, shall serve for three years from said date; and so on 
until the term of each one of said commissioners shall be defi- 
nitely determined, each one serving for the length of time in- 
scribed on the lot drawn by him— the last of said commissioners 
serving for the term of one year only from said first day of 
March, A. D. 1869. As soon as the term of office of each of said 
commissioners shall be determined as aforesaid, said board shall 
organize by electing one of their number as president, and one 
of their number as auditor; they shall also appoint a treas- 
urer, prescribe his duties, and fix his compensation, who shall 
give bond for the faithful discharge of his duties in the penal 
sum of five hundred thousand dollars, with not less than three 
sufficient sureties, to be approved by the judge of the circuit 
court of Cook county. They shall also choose a secretary, who 
shall not necessarily be a commissioner, and who shall hold 
his office until his successor shall be appointed as hereinafter 
provided; and all officers appointed by the board shall be sub- 
ject to removal at the pleasure of the board. The said board 
shall adopt a seal, and alter the same at pleasure; they shall 
keep a complete record of all their proceedings, which shall 
be open at all times for the inspection of the public. The said 
commissioners shall receive no compensation for their services, 
except the president, who may, in the discretion of said board, 
have and receive such compensation as may be fixed as herein- 
after provided, not to exceed three thousand dollars per annum. 
All vacancies occurring in said board shall be filled by the 
appointment of the judge of the circuit court of Cook county, 
when such vacancv or vacancies shall occur. Said board of 



commissioners shall be a body politic and corporate, and shall 
have and enjoy all the powers necessary for the purpose of this 
act. 

Sec. 3. The president, auditor, treasurer and secretary, shall 
be elected annually by said board, at the annual meeting thereof, 
and shall receive such salary for their services as the said 
board shall from time to time determine, not exceeding, for 
each of said officers, the sum of three thousand dollars per 
annum. 

Sec. 4. The said commissioners, by this act, are authorized 
and empowered to, and they shall, within ninety days after their 
organization, as aforesaid, or as soon thereafter as practicable, 
elect the following described lands, situated in the towns of 
South Chicago, Hyde Park and Lake, in Cook county, Illinois, 
to wit: commencing at the south-west corner of Fifty-first street 
and Cottage Grove avenue, running thence south along the west 
side of Cottage Grove avenue to the south line of Fifty-ninth 
street ; thence east along the south line of Fifty-ninth street to 
the east line of Hyde Park avenue; thence north on Hyde Park 
avenue to Fifty-sixtb street; thence east along the south line of 
Fifty-sixth street to Lake Michigan ; thence southerly along the 
shore of the lake to a point due east of the center of section 
twenty-four (24) in township thirty-eight (38) north, range 
fourteen (1-1) ; thence west through the center of said section 
twenty-four (24) to Hyde Park avenue; thence north on the east 
line of Hyde Park avenue to the north line of Sixtieth street, so 
called, thence west on the north line of Sixtieth street, so called, 
to Kankakee avenue; thence north on the east line of Kankakee 
avenue to Fifty-first stnet ; thence east to a point to the place 
of beginning; also a piece of land commencing at the south-east 
corner of Kankakee avenue and Fifty-fifth street, running thence 
west a strip two hundred feet wide adjoining the north line of 
Fifty-fifth street, along said Fifty-fifth street to the line between 
ranges thirteen (13) and fourteen (14) east; thence north, east 
of and adjoining said line, a strip 200 feet wide, to the Illinois 
and Michigan Canal ; also a parcel of land beginning at the 
south-west corner of Douglas place and Kankakee avenue, run- 
ning thence south a strip of land 132 feet wide, along the west 



8 

side of said Kankakee avenue, to a point 150 feet south of the 
south line of Fifty-first street; also a strip of land commencing 
at the intersection of Cottage Grove avenue and Fifty-first street, 
running thence east 100 feet in width on each side of the center 
line of Fifty-first street, to a point 100 feet east of the center 
line of Drexel avenue; also a strip of land extending north from 
the intersection of Fifty-first street with Drexel avenue, 100 feet 
in width on each side of the center line of said avenue to the 
north line of Forty-third street; thence northerly, a strip of 
land 200 feet in width, till it meets or intersects with Elm street 
in Cleaverville ; thence northerly along said Elm street, 200 feet 
in width, west from the east line of said street, to its intersection 
with Oakwood avenue; which said land and premises, when 
acquired by said commissioners as provided by this act, shall be 
held, managed and controlled by them and their successors, as 
a public park, for the recreation, health and benefit of the pub- 
lic, and free to all persons forever, subject to such necessary 
rules and regulations as shall, from time to time, be adopted by 
said commissioners and their successors for the well ordering 
and government of the same. 

Sec. 5. In case the said commissioners cannot agree with 
the owner or owners, lessees or occupants of any of the said real 
estate selected by them as aforesaid, they may proceed to pro- 
cure the condemnation of the same in the manner prescribed in 
the act of the general assembly of the State of Illinois, entitled 
"An Act to amend the law condemning right of way for the 
purpose of internal improvements," approved June 22, 1852, 
and the acts amendatory thereof, the provisions of which said 
act, and the several acts amendatory thereof, are hereby ex- 
tended to the park and park commissioners to be created by 
virtue of this act. 

Sec. 6. When the title to the land selected for such park as 
herein provided, shall have been acquired by said commis- 
sioners, by gift, condemnation, or otherwise, it shall be the duty 
of such commissioners to make, acknowledge, and file for record 
in the office of the recorder of deeds for Cook comity, a map, 
showing the said land, with a correct description, including 
section, township and range. 



9 

Sec. 7. As soon as the amount required for the condemna- 
tion of the grounds selected for said park shall have been ascer- 
tained, by said commissioners, with reasonable certainty, they 
shall apply to the judge of the circuit court of Cook county, for 
the appointment of three freeholders of the county of Cook as 
park assessors. The commissioners shall give notice in one or 
more of the daily newspapers published in the city of Chicago, 
of the time when such application will be made, and all parties 
interested may appear and be heard by the said judge, touching 
such appointment. At the time fixed for such application, the 
court, after hearing such persons as shall desire to be heard, 
touching such appointment, shall nominate and appoint three 
assessors for the purposes provided in this act. The said assess- 
ors shall proceed to assess the amount so ascertained upon 
property in the towns of South Chicago, Hyde Park and Lake, 
in Cook county, deemed benefited by reason of the improve- 
ment occasioned by the location of said park, as near as may lie 
in proportion to the benefits resulting thereto: Provided, that 
the aggregate of said benefits is equal to or greater than the 
amount of said damages; and in case the aggregate of the bene- 
fits is less than the damages, then the balance of the damages 
over the benefits shall be from the fund provided for in sec- 
tion 8 of this act. Upon entering on the duties of their office, 
the said assessors shall make oath before the clerk of the said 
circuit court faithfully and impartially to discharge the duties of 
their office. They shall give at least ten days' notice in one of 
the said daily papers, of the time and place of their meeting for 
the purpose of making said assessment, and may adjourn such 
meeting from time to time until the same shall be completed. In 
making the said assessment the said assessors shall estimate the 
value of the several lots, blocks or parcels of land deemed bene- 
fited by them as aforesaid, and shall include the same, together 
with the amount assessed as benefits, in the assessment roll. All 
parties interested may appear before said assessors, and may he 
heard touching any matter connected with the assessment. 
When the same shall lie completed, it shall be signed by the 
assessors, and returned to the said circuit court, and shall be 
filed by the clerk thereof. The assessors shall thereupon give 



10 

at least ten days' notice in one of the said daily papers, of the 
filing of said assessment roll, and that they will, on a day there- 
in named, apply to the said circuit court for confirmation of the 
same, which said notice shall he published at least ten days be- 
fore the time fixed for such application. Said circuit court shall 
have power to revise, correct, amend or confirm said assessment, 
in whole or in part, and may make or order a new assessment 
in whole or in part, and the same revise and confirm upon like 
notice. All parties interested may appear before said circuit 
court, either in person or by attorney, when such application 
shall be made, and may object to said assessment, either in whole 
or in part, provided all objections shall be in writing, and shall 
be filed at least three days before the time fixed for the applica- 
tion, and shall specify the lot, block or parcels of land on behalf 
of which objection is made. After the confirmation of said as- 
sessment, the clerk of said circuit court shall file a copy thereof, 
under the seal of his said court, with the clerk of the county 
court of Cook county, and such assessment shall be a lien upon 
the several lots, blocks or parcels of land assessed for the bene- 
fits as aforesaid. Ten per cent, of the amount so ascertained 
shall be due and payable annually, and the clerk of said Cook 
county court shall include in the general tax warrants for each 
vear, until the whole sum shall be paid, for the collection of 
State and county taxes in the said towns of South Chicago 
Hyde Park and Lake, ten per cent, of the said assessments, in 
an appropriate column, to be termed "South Park Assessment," 
with the amount to be collected opposite the several lots, blocks 
or parcels of land assessed as aforesaid ; and like proceedings in 
all respects shall be had for enforcing the collection of the same 
as is now provided by law for the collection of state and county 
taxes. The money collected under the provisions of this section 
shall be paid to the treasurer of Cook county, for which he and 
his sureties shall be responsible, as fully as for any other moneys 
by him received as treasurer of Cook county, and be held by 
him in the same manner and be subject to the same control and 
direction, as provided in this act for other moneys belonging to 
said corporation ; and the treasurer of Cook county shall be 
entitled to receive one-half of one per cent, and no more, of 



11 

said moneys as a full compensation for receiving and disbursing 
the same. 

Sec. 8. For any deficiency arising through acquiring a title 
to said park, and for the payment of expenses of enclosing, 
maintaining and improving the park herein provided for, and 
the expenses, disbursements and charges in the premises, the 
said commissioners shall have power to loan or borrow, from 
time to time, for such time as they shall deem expedient, a sum 
of money not exceeding two millions of dollars, and shall have 
authority to issue bonds, secured upon the said park and im- 
provements, which bonds shall issue under the seal of said com- 
missioners, and shall be signed by said commissioners, and 
countersigned by the secretary of said board, and bear interest 
not exceeding seven per cent, per annum; and it shall be the 
duty of said commissioners to keep an accurate register of all 
bonds issued by them, showing the number, date and amount 
of each bond, and to whom the same was issued, and said regis- 
ter shall at all times be open to the investigation of the public; 
and for the payment of the principal and interest of said bonds, 
the said park and improvements shall be irrevocably pledget], 
and the towns of South Chicago, Hydo Park and Lake, shall be 
irrevocably bound; and said bonds may be sold by said com- 
missioners, upon such terms and for such prices as, in the judg- 
ment of said commissioners, can be obtained for the same in 
cash. 

Seo. 9. The said board of park commissioners shall annually, 
on or before the 1st day of December in each year, transmit to 
the clerk of the county court of Cook county, an estimate, in 
writing, of the amount of money, not exceeding in any one 
year, three hundred thousand dollars, necessary for the payment 
of the interest on the bonds issued by said board, and that in 
addition thereto will be required for the improvement, mainte- 
nance and government of said park during the current year; 
and the said clerk shall proceed to determine what per cent, 
said sum is on the taxable property of said towns, according to 
the several assessors' returns for the respective year, and shall, 
in the next general tax warrants for the collection of State and 
countv taxes in said several towns, set down the amount charge- 



12 

able to the several persons, corporations, lots or parcels of 
ground, in a separate or appropriate column, and shall receive 
such compensation as now allowed by law; and the collectors 
respectively shall proceed to collect the same in the manner 
now provided by law for the collection of State and county 
taxes; and all the provisions of law, in respect to the collection 
of State and county taxes, and proceedings to enforce the same, 
so far as applicable, shall apply to said assessments and taxes. 
The said sum of money shall be placed by the treasurer of the 
said county of Cook, to the credit of said board of park com- 
missioners, and shall be drawn by said board from the county 
treasury by warrant, signed by the president and secretary of 
the board, and countersigned by the auditor, to be appointed as 
aforesaid, and in no other way ; the appointment of such auditor 
or comptroller having been first duly certified by such president 
and secretary, and filed in the office of said treasurer of Cook 
county. 

Sec. 10. It shall be lawful for said commissioners to vacate 
and close up any and all public roads and highways, excepting 
railroads, which may pass through, divide or separate any lands 
selected or appropriated by them for the purpose of a park ; and 
no such road shall be laid out through said park except as the 
said commissioners shall lay out and construct. 

Sec. 11. Xo one of the said commissioners shall be inter- 
ested, either directly or indirectly, in any contract entered into 
by them with any other person; nor shall they be interested, 
directly or indirectly, in the purchase of any material to be used 
or applied in and about the uses and purposes contemplated in 
this act. And it shall be a misdemeanor for any commissioner 
to be directly or indirectly interested, or in any way pecuniarily 
interested in any contract or any work of any kind whatever, 
connected with said park. 

Sec. 12. The said commissioners, or either of them, may be 
removed from office by the Judge of the circuit court of Cook 
county, upon the petition presented to him in term time or in 
vacation, by one hundred freeholders of said towns of South 
Chicago, Hyde Park and Lake, if it shall appear, after hearing 
the proof before said judge, that the said commissioners, or 



13 

cither of them, have been guilty of misdemeanor or malfeasance 
in office under this act; and if the said judge shall remove any 
two or more of said commissioners from office for any cause, lie- 
fore the expiration of their term of office, he is hereby empow- 
ered to appoint others in their stead, who shall fill such offices 
for and during the unexpired term of such commissioners so 
removed. 

Sec. 13. The said board shall have the full and exclusive 
power to govern, manage and direct said park; to lay out and 
regulate the same; to pass ordinances for the regulation and 
government thereof; to appoint such engineers, surveyors, clerks 
and other officers, including a police force, as may be necessary ; 
to define and prescribe their respective duties and authority; 
fix the amount of their compensation; and generally, in regard 
to said park, they shall possess all the power and authority now 
by law conferred upon, or possessed by the common council of 
the city of Chicago, in respect to the public squares and places 
in said city; and it shall be lawful for them to commence the 
improvement of said park as soon as they have obtained one 
hundred acres of the premises herein described. 

Sec. 14. The office of any commissioner under this act, who 
shall not attend the meetings of the boards for three successive 
months, after having been duly notified of said meetings, with- 
out leave of absence from said board, may, by said board, be 
declared vacant. 

Sec. 15. The real estate and personal property of said cor- 
poration shall be exempted from taxation and assessment. 

Sec. 16. All moneys belonging or to belong to any park 
fund now in existence or hereafter to be created, and all bonds, 
and the proceeds from sales thereof now authorized or hereafter 
to be authorized to be issued by the city of Chicago for park 
purposes, in or to which the South Division of the city of Chi- 
cago may now or shall hereafter be entitled to a distributive 
share, shall be devoted and applied to the purchase or mainte- 
nance and improvement of the park contemplated and created 
by this act, under the direction and control of the commissioners 
provided for in this act. 

Sec. 17. The bonds to be issued under this act may be re- 



14 

reived in payment of any assessment, whether such bond or as- 
sessment shall have become due or not, upon such terms as shall 
be fair, just and equitable ; and upon the payment of any assess- 
ment, the land upon which the same is assessed shall be free 
from any lien or liability to pay the same; and such payment 
shall be reported to the county clerk of Cook county, and en- 
tered upon the record of assessment. 

Sec. 18. There shall be an election held in the towns of 
South Chicago, Hyde Park and Lake, on the fourth Tuesday in 
March next after the passage of this act, at which election the 
legal voters voting at such election shall vote for or against this 
act. The tickets shall be printed or written, "For Park"* or 
'"Against Park;" and if a majority of the votes cast on the sub- 
ject of park shall be "For Park," then this act shall take effect 
and be in force, but not otherwise. The clerk of the county 
court of Cook county shall designate the places of holding such 
election, and give notice thereof in one or more of the daily 
papers published in the county of Cook, at least six days pre- 
ceding such election, and shall supply the judges thereof with 
the necessary books, papers and boxes as in other cases of 
election, and there shall be one polling or voting place in each 
voting precinct in said towns, as the same were fixed at the last 
general election in the county of Cook. The persons who acted 
as judges or inspectors of election in the several precincts of said 
towns, at the last general election in Cook county, shall be the 
judges or inspectors of this election. In case the judges or in- 
spectors of election shall not attend at the time for opening the 
polls, such judges or inspectors shall be chosen by the legal 
voters present. The clerks shall be appointed as provided in 
elections for county officers. The polls shall be opened and 
closed, and the election conducted as elections for county 
officers. All legal voters of said towns shall be entitled to vote 
at such election, without any new registration; and the judges 
or inspectors of such election shall use the registry list made for 
the general election in November, 1868 ; Provided, That when- 
ever any person whose name is not on the registry list shall offer 
his vote at such election, the judges or inspectors shall require 
the same evidence of his qualifications as now provided by law. 



15 

The said judges of flection shall immediately after the closing 
of the polls, count the ballots, fill out and sign the returns and 
tally-shoots, as now provided by law in all other elections, and re- 
turn the poll books and ballots to the clerk of the county court, 
as in other cases of election. The votes shall be canvassed in the 
manner provided by law for the election of state and county 
officers. The clerk of the county court of Cook county shall 
immediately after such canvass, cause a certificate of the result 
of such election to lie filed in the office of the secretary of state, 
which shall be conclusive evidence of the result of said election. 

Sec. 19. This act shall be a public act, and shall take effect 
and be in force from and after its passage. 

Approved February 24, 1869. 

AN ACT amendatory of and supplementary to an act to provide 
for the location and maintenance of a Park for the towns of 
South Chicago, Hyde Park and Lake, approved February 24, 
1869. 

Section 1. Be it enacted by the People of the State of Illi- 
nois, represented in General Assembly, That the portion of the 
fourth section of the act to which this is amendatory and supple- 
mental, which is in the words "A piece of land commencing at 
the south-east corner of Kankakee avenue and Fifty-fifth street ; 
running thence west, a strip two hundred feet wide adjoining 
the north line of Fifty-fifth street," is hereby amended by sub- 
stituting in lieu thereof the words "A piece of land commencing 
at the north-east corner of Kankakee avenue and Fifty-fifth 
street, running thence west a strip two hundred feet wide south 
of and adjoining the north line of said Fifty-fifth street." 

Sec. 2. The bonds authorized to be issued by the act of 
which this is amendatory and supplemental, may be issued, sold, 
and the proceeds applied for acquiring said lands, and for any 
and all purposes in the said act mentioned. Said bonds shall be 
retired and canceled as fast as the money for that purpose can 
be obtained, by the collection of the money due upon the 
special assessment provided for in section seven of the act here- 
inbefore mentioned, and a sufficient amount of any bonds that 



16 

may be issued by the city of Chicago under any law now in force 
or hereinafter enacted, and received by said commissioners, shall 
be applied to the purpose of retiring the bonds authorized by 
said act. 

Sec. 3. The ninth section of said act is hereby so amended 
that the words "during the current year/' shall read "during 
the next succeeding year." 

Sec. 4. That the twelfth section of said act be and the same 
is hereby amended so as to read as follows: The said commis- 
sioners, or either of them, may be removed from office by the 
judge of the circuit court of Cook county, upon the petition 
presented to him in term time, or in vacation, by one hundred 
freeholders of said towns of South Chicago, Hyde Park and 
Lake, if it shall appear after hearing proof before said judge, 
that the said commissioners, or either of them, have been guilty 
of misdemeanor or malfeasance in office under this act: and if 
the said judge shall remove any one or more of said commis- 
sioners from office for any cause before the expiration of their 
term of office, he is hereby authorized and empowered to fill the 
vacancy or vacancies thus created by appointing other commis- 
sioners in their place, who shall serve during the unexpired 
terms of the commissioners so removed. 

Sec. 5. The commissioners to be appointed under said act 
are hereby vested with the same powers and duties as are con- 
ferred by said act in relation to lands designated for parks, over 
all streets running longitudinally along and adjoining any and 
all of the proposed parks, or strips of land designated in said 
original act, as are conferred by said act in relation to such parks 
and strips of land, as may be necessary to improve and keep in 
repair the same, in connection with the said parks or strips of 
land without obstructing the fences or other structures, free 
access to the said streets from existing roads and streets, and by 
owners of land abutting on the same. 

Sec. 6. The elections held in the towns of South Chicago, 
Hyde Park and Lake, on the twenty-third day of March, A. D. 
1869, under and by virtue of the eighteenth section of the act 
to which this is an amendment, are hereby legalized and con- 
firmed, and said act shall be held and deemed to have been reg- 



17 

ularly and legally adopted by the legal voters of said towns, and 
shall remain in full force and effect, and shall be liberally con- 
strued in all courts, with a view to carry out and enforce the in- 
tent and meaning of the same. 

Sec. 7. This act is hereby declared a public act, and shall 
take effect, and be in full force from and after its passage. 

F. CORWIX, 

Speaker of the House of Representatives. 

J. DOUGHERTY, 

Speaker of the Sonde. 

Approved April 16, 1869. 

JOHN M. PALMER, Governor. 



IS 



DECISION BY SUPREME COURT OF ILLINOIS 



THE SOUTH PAEK. 



At a Supreme Court, begun and held at Mount Vernon, on 
Tuesday, the first day of June, in the year of our Lord one thou- 
sand eight hundred and sixty-nine, within and for the First 
Grand Division of the State of Illinois: Present — Sidney 
Breese, Chief Justice ; Charles B. Lawrence, Justice; Pinkney H. 
Walker, Justice. 

The People on the relation of John M. Wilson } et al. vs. E. S. 
Salomon, Cleric of Cook County Court — Application for Man- 
damus. 

[Opinion by Breese, C. J.] 
This is an application by John M. Wilson and others, styling 
the n i selves South Park Commissioners, for a peremptory manda- 
mus against Edward S. Salomon, the clerk of the county court 
of Cook county, to compel him, as such clerk, to receive and file 
in his office forthwith a certain estimate transmitted to him by 
the petitioners of the amount of money that they allege will be 
required to lie raised by taxation the next succeeding year for 
the improvement, maintenance and government of the south 
park; and to compel him to proceed to levy or assess the amount 
certified in such certificate upon the taxable property in the 
towns of South Chicago, Hyde Park and Lake, in the next gen- 
eral tax warrants for the collection of State and county taxes in 
those towns. It is stipulated that the petition shall stand in the 
place of an alternative writ to which a motion to quash has been 
interposed, so that the question whether certain acts of the Gen- 
eral Assembly mentioned in the petition are so far valid that the 
amount certified to the respondent, by the south park commis- 
sioners, ought to be levied and collected as a tax as provided in 
those acts, and the further question, whether the relators are pre- 
cluded of their remedy by mandamus, by reason of a pendency 



19 

of a suit by injunction particularly mentioned in a stipulation on 
file, may be fully presented and decided. 

The petition alleges that on the twenty-fourth of February, 
1869, an act of the General Assembly of this State was duly ap- 
proved, entitled "An act to provide for the location and mainte- 
nance of a park for the towns of South Chicago, Hyde Park 
and Lake." 

By section one or this act the Governor of the State was re- 
quired to appoint five persons, who, and their successors, are 
constituted a board of public park commissioners, to be known 
under the name of the South Park Commissioners; each of the 
commissioners, before entering upon the duties of his office, was 
required to take an oath well and properly to discharge the 
duties of bis office for the interests of the public, and to give a 
bond in the penal sum of $50,000, with one or more sureties, to 
be approved by the judge of the circuit court of Cook county, 
payable to the treasurer of Cook county, conditioned for the 
faithful discharge of their duties under the act. 

By section two provision is made for fixing the terms of office 
of the several members, and for organizing, by the election of 
one of their number as president, and one of their number as 
auditor, and by the appointment of a treasurer, who should be 
required to give a bond, with not less than three sufficient sure- 
ties, for the faithful discharge of his duties, in the penal sum of 
$500,000, to be approved by the judge of the same circuit court. 
A secretary was required to be chosen, a seal to be adopted 
(which they could alter at pleasure), a record to be kept of their 
proceedings, no compensation allowed the commissioners exec]) 1 
to the president, vacancies to be filled by appointment of the 
judge of the circuit court of Cook county, and the board is de- 
clared a body politic and corporate, and to have and enjoy all 
the powers necessary for the purposes of the act. 

These purposes are declared by the fourth section, which are 
the selection of certain described lands by the commissioners, 
within ninety days after their organization, situate in the towns 
of South Chicago, Hyde Park and Lake, which lands, when ac- 
quired, are to be held, managed and controlled by them and 
their successors as a public park, for the recreation, health and 



20 

benefit of the public-, and free to all persons forever, subject to 
such necessary rules and regulations for the well ordering and 
government of the same as the commissioners or their successors 
may adopt. 

The fifth section gives the commissioners power, if they and 
the owners of any of these lands cannot agree, to proceed to 
condemn them. 

Provision is made by section seven for the appointment of 
assessors to assess the benefits and damages. 

The eighth section is as follows: 

"For any deficiencies arising through acquiring title to said 
park and for the payment of the expeness of enclosing, main- 
taining and improving the park herein provided for, and the 
expenses, disbursements and charges in the premises, the said 
commissioners shall have the power to loan or borrow, from time 
to time, for such time as they shall deem expedient, a sum of 
money not exceeding two millions of dollars, and shall have 
authority to issue bonds secured upon the said park and improve- 
ments, which bonds shall issue under the seal of said commis- 
sioners, and shall be signed by said commissioners, and counter- 
signed by the secretary of said board, and bear interest not ex- 
ceeding seven per cent, per annum; and it shall be the duty of 
said commissioners to keep an accurate register of all bonds 
issued by them, showing the number, date and amount of each. 
bond, and to whom the same was issued, and said register shall 
at all times be open to the investigation of the public; and for 
the payment of the principal and interest of said bonds, the said 
park and improvements shall be irrevocably pledged, and the 
towns of South Chicago, Hyde Park and Lake shall be irre- 
vocably bound; and said bonds may be sold by said commis- 
sioners, upon such terms and for such prices as, in the judg- 
ment of said commissioners can be obtained for the same in 
cash." 

Section nine provides as follows : 

"The said board of park commissioners shall, annually, on or 
before the 1st day of December in each year, transmit to the 
clerk of the county court of Cook county an estimate, in writing, 
of the amount of money, not exceeding in any one year three 



21 

hundred thousand dollars, necessary for the payment of the in- 
terest on the bonds issued by said board, and that in addition 
thereto will be required for the improvement, maintenance and 
government of said park during the current year; and the said 
clerk shall proceed to determine what per cent, said sum is on 
the taxable property of said towns, according to the several 
assessors' returns for the respective year, and shall, in the next 
general tax warrant for the collections of State and county taxes 
in said several towns, set down the amount chargeable to the 
several persons, corporations, lots or parcels of ground, in a sep- 
arate or appropriate column, and shall receive such compensa- 
tion as now allowed by law; and the collectors respectively shall 
proceed to collect the same in the manner now provided by law 
lor the collection of State and county taxes; and all the pro- 
visions of law in respect to the collection of State and county 
taxes, and proceedings to enforce the same, so far as applicable, 
shall apply to said assessments and taxes. The said sum of 
money shall be placed by the treasurer of the said county of 
Cook to the credit of said board of park commissioners, and 
shall be drawn by said hoard from the county treasury by war- 
rant signed by the president and secretary of the board, and 
countersigned by the auditor to be appointed as aforesaid, and in 
no other way; the appointment of such auditor and comptroller 
having been first duly certified by such president and secretary, 
and filed in the office of said treasurer of Cook county." 

Section thirteen is as follows: 

'"The said board shall have the full and exclusive power to 
govern, manage and direct said park; to lay out and regulate 
the same; to pass ordinances for the regulation and government 
thereof; to appoint such engineers, surveyors, clerks and other 
officers, including a police force, as may be necessary; to define 
and prescribe their respective duties and authority ; fix the 
amount of their compensation; and, generally, in regard to said 
park, they shall possess all the power and authority now by law 
conferred upon, or possessed by, the common council of the city 
of Chicago, in respect to the public squares and places in said 
city ; and it shall be lawful for them to commence the improve- 
ment of said park as soon as they have obtained one hundred 
acres of the premises herein described." 



22 

Section eighteen provides for an election to be held in these 
towns on the fourth Monday of March next after the passage of 
the act, at which election the legal voters were required to vote 
for or against the act, the tickets to be printed ''For Park/' and 
"'Against Park," and if a majority of the votes cast be "For 
Park" then the act is to take effect and be in force, and not 
otherwise. Ample provision is made for holding the polls and 
for canvassing the votes, as for the election of State and county 
officers; and the clerk of the county court was recpiired, imme- 
diately after the canvass, to cause a certificate of the result to 
be filed in the office of the secretary of state 

The nineteenth section makes the act a public act. and to 
take effect and be in force from and after its passage. 

By an amendatory and supplemental act. approved April 16th. 
1869, it was provided, among other tilings, by section "?. that 
the bonds authorized to be issued by the act of which this is 
amendatory and supplemental, may he issued, sold, and the pro- 
ceeds applied for acquiring said lands, and for any and all pur- 
poses in the said act mentioned. Said bonds shall be retired and 
canceled as fast as the money for that purpose can be obtained 
by the collection of the money due upon the special assessment 
provided for in section seven of the act hereinbefore mentioned, 
and a sufficient amount of any bonds that may be issued by the 
city of Chicago under any law now in force, or hereafter enacted. 
and received by said commissioners, shall lie applied to the pur- 
pose of retiring the bonds authorized by said act. 

The third section amends the ninth section by substituting the 
next succeeding year for the current year. 

• The sixth section confirms and legalizes the election held on 
the 23d of March, as required by section 18 of the original act. 

Section seven declares this act to be a public act, and to be 
in force from and after its passage. 

These portions of the original and supplemental acts are those 
upon which the questions arise, and which we consider necessary 
to be examined in order to a proper understanding of the case. 

The petition alleges that this act was duly submitted to the 
legal voters of the towns of South Chicago, Hyde Park and Lake, 
at an election held within them, on the clay specified in the act, 



o.q 



for their approval or rejection, at which election a large majority 
of the votes cast in each of those towns was in favor of the park 
provided for in the act, a certificate of which was filed by the 
clerk of the county court with the secretary of state. It allege- 
the corporation created by the act had duly organized, having in 
all things complied with the provisions of the act creating it — 
that the lands had been selected, and that they had purchased 
and acquired the title to 100 acres and upwards of the land- se- 
lected, and they allege they are now negotiating for the purchase 
of, and expect soon to acquire the title to, the residue: that they 
have issued and sold bonds to the amount of $125,000 to provide 
money to pay for these lands, and that they expect and intend 
soon to issue and sell a large additional amount of bonds for the 
same purpose. 

It is further alleged that on the 24th of May, 1869, they, 
as the board of South Park Commissioners, passed a preamble 
and resolution, which was duty entered on their record, a certi- 
fied copy of which, under the seal of the board, they did on that 
<lav transmit to the respondent as clerk of the county court of 
Cook county, accompanied by a communication in writing, 
signed by all the members of the board, which preamble and 
resolution is as follows : 

"Whereas, This board is required by its act of incorporation 
and a subsequent ad of the General Assembly amendatory there- 
of and supplementary thereto, to transmit annually on or before 
the first day of December in each year to the clerk of the county 
court of Cook county an estimate, in writing, of the amount of 
money, not exceeding in any one year $300,000, necessary for 
the payment of the interest on the bonds issued by said board, 
and that in addition thereto will be required for the improve- 
ment, maintenance and government of the park provided for in 
said acts during the next succeeding year. 

"Be it tlierefore Resolved, That the sum of $300,000 be, and 
the same hereby is designated for such purposes which this board 
hereby estimates as necessary for the same; and that this amount 
be certified in writing by the secretary of this board, under the 
seal thereof, to the clerk of the county court of Cook county, as 
the estimated amount of money that will lie necessary and re- 



24 

quired by this board (luring the next succeeding year for the 
purposes above mentioned; and further, that the said clerk be 
requested to assess the same upon the taxable property of the 
towns of South Chicago, Hyde Park and Lake, in the next gen- 
eral tax warrants for the collecting of State and county taxes in 
said several towns, agreeable to the provisions of the ninth sec- 
tion of the act first above referred to, entitled 'An act to provide 
for the location and maintenance of a park for the towns of 
South Chicago, Hyde Park and Lake,' approved Feb. 24, 1869, 
as amended by the act amendatory of and supplementary to said 
first-named act, approved April 16, 1869/' 

The communication from the board accompanying the above 
was of the following tenor: 

Chicago, May 24, 1869, 
To Gen. Edward 8. Salomon, 

Clerk of the County Court of Cook County: 

Sir : The undersigned, constituting the board of South Park 
Commissioners, transmit herewith a certified copy of a preamble 
and resolution passed by the said board on the 24th instant, 
specifying the estimated amount of money that will be necessary 
and required during the next succeeding year for the payment 
of the interest on the bonds issued by said board, and for the 
improvement, maintenance and government of the park therein 
referred to. The estimate, as you will perceive, is $300,000. 

You will please place this communication on file in your 
office; and you are hereby requested to assess the amount above 
mentioned, for the purposes herein specified, on the taxable prop- 
erty of the towns of South Chicago, Hyde Park and Lake, in 
the next general tax warrants for the collection of State and 
county taxes in said several towns, agreeably to the provisions of 
section 9 of the act approved Feb. 24, 1869, entitled "An act 
to provide for the location and maintenance of a park for the 
towns of South Chicago, Hyde Park and Lake," as amended by 
the act amendatory of and supplementary to said first-named act, 
approved April 16, 1869. Very respectfully, &c. 

This communication, with the preamble and resolution of the 
board, was returned by the clerk on the 25th of May, with a 
communication from him, in which he says, "as a suit has been 



25 

commenced against him. as well as the commissioners, in the 

superior court of Chicago, to enjoin him from levying the tax 
referred to in the resolution, he cannot consistently receive these 
documents, and declines to place either of them on file in his 
office. He further says he has decided not to levy or assess 
a tax for the purpose specified until he is required by a court of 
competent jurisdiction; and he desires his letter to lie considered 
as an official and positive refusal on his part to comply with the 
requests of the commissioners." 

The stipulation to consider the petition as an alternative writ, 
the motion to quash performs the same office as a general de- 
murrer to the writ, and brings the law of the case fully before us. 
xA.ll the facts, which are well pleaded, arc admitted by the mo- 
tion, and the question is distinctly raised, is there enough shown 
in the petition to entitle the relator to a peremptory writ of 
mandamus f 

The refusal of the clerk to do the duty enjoined upon him by 
the ninth section of the act is positive and peremptory, and we 
are to inquire, is he justified therein by any want of validity it: 
the act itself ; for it is upon that, and that alone, the justification 
is claimed. 

The respondent makes several points of objection to granting 
the writ, which we will now consider. 

He denies that the relators are invested by the acts cited with 
authority to issue and sell bonds which shall be a charge upon 
the towns of South Chicago, Hyde Park and Lake, no legal and 
competent means having been provided for their payment. 

The argument is. that the manner in which the power to ac- 
quire the land is proposed to be exercised is in violation of sec- 
tion five of article nine of our constitution. 

The provision is that the corporate authorities of counties, 
townships, school districts, cities, towns and villages, may be 
vested with power to assess and collect taxes for corporate pur- 
poses; such taxes to be uniform in respect to persons and prop- 
erty within the jurisdiction of the body imposing the same, and 
the legislature shall require that all the property within the 
limits of municipal corporations shall be taxed for the payment 
of debts contracted under the authoritv of law. 



26 

We have held in Hay ward vs. the St. Clair and Monroe Sewer 
and Drainage Company, decided at the last January term, and 
in the case of the people, ex relatione McCagg, vs. the Mayor, 
&c, of Chicago, decided at the present term, that this clause 
must be construed as a limitation upon the power of the legisla- 
ture to authorize any other than corporate authorities to assess 
and collect local taxes. But while this provision limits the ob- 
jects of local taxation to corporate purposes, and the delegation 
of the power of taxation to the corporate authorities of counties, 
townships, school districts, cities, towns and villages, it clearly 
does not prevent the legislature from creating districts by the 
union of two or more towns in the same county for any special 
township purpose, such as building a bridge, improving a river 
on which they may be situate, or constructing a canal, with the 
consent of those towns, and exercising for such district an au- 
thority, likewise with their consent, to which shall be granted 
all the necessary powers of taxation for the construction of the 
improvements and for their government and control. 

By our constitution, taxation is apportioned upon property by 
the rule of uniformity, and to do this there must be taxation dis- 
tricts. A State tax is apportioned throughout the State as a 
county tax is throughout a count}^ or a city tax is through- 
out a city, while in the case of a mere local improvment, such 
as a public park, benefiting more immediately particular towns, 
where is the constitutional incompetence of the legislature 
to be found to arrange those towns into a special taxation 
district, within which the expense shall be apportioned, and 
whose people and property shall bear the burden they have them- 
selves imposed? If the legislature has power, for any purpose 
they may deem beneficial, to abstract from the powers they have 
granted to a municipal corporation, and to curtail their terri- 
torial jurisdiction — and this is not denied — what reason can be 
urged why they should not, with the assent of the people to be 
affected by the measure, place over them an authority for a 
special purpose with the powers granted to the relators? 

To say such an act is forbidden by the constitution is not 
enough. The prohibition must be found either in the express 
letter of that instrument or in its spirit and true intention and 



meaning. Considering, then, that corporate authorities of coun- 
ties, &c, can alone assess and collect taxes for corporate pur- 
poses, it by no means follows, that the legislature cannot, should 
the public exigencies require it (of which they must be the 
judge) establish districts hy the union of two or more munic- 
ipal corporations, and place their government entirely under the 
control of the corporate authorities of such districts, bestowing 
upon them, among others, the taxing power? 

The whole legislative power of the State is conferred by the 
constitution upon the General Assembly, composed of two houses, 
the members of both to have certain qualifications, and to be 
elected by the people. It follows, therefore, that every subject 
not withdrawn from them by the constitution, and which is 
within the scope of civil government, can be dealt with by that 
body; and as it may act upon the State at large, by general laws 
affecting the whole country and all the people, so it may in its 
discretion, there being no prohibition expressly made or neces- 
sarily implied, make special laws to relate only to separate dis- 
tricts or portions of the State. 

The members of the two houses are the constitutional agents 
of the public will in every district or locality of the State, and 
they may therefore so arrange the powers to be given and exe- 
cuted therein as convenience, the efficiency of administration 
and the public good may seem to require, by committing some 
functions to local jurisdictions already established, or by estab- 
lishing local jurisdictions for that express purpose. 

The clause in the ninth article on which so much stress is laid, 
that the legislature may vest the corporate authorities of coun- 
ties, cities, etc., with the power to assess and collect taxes, does 
not confine the legislature to any particular corporate authori- 
ties or any then known instrumentalities of that character. The 
instrument was made for all time, with full knowledge that the 
public necessities might require the creation of various and dis- 
similar corporate authorities, and to be imbued with adminis- 
trative functions of a nature which could not be properly exer- 
cised by any known and existing corporate authority. 

There is no prohibition which we have been able to discover, 
and we have been pointed to none, against the creation by the 



28 

legislature of every conceivable description of corporate author- 
ity, and. when created, to endow with all the faculties and attri- 
butes of other pre-existing corporate authorities. Thus, for 
example, there is nothing in the constitution of this State to 
prevent the legislature from placing the police department of 
Chicago, or its fire department, or its water-works, under the 
control of an authority which may be constituted for such pur- 
pose by a vote of the people, and endow it with power to assess 
and collect taxes for their support, and confide it to their control 
and government. Section five of article nine would not be 
violated thereby, because the authority thus established would he 
a corporate authority, and the purposes for which taxes could lie 
assessed are undeniably corporate. 

The relators are made a body politic and corporate, with per- 
petual succession and with a seal, and, though appointed by the 
governor, they are a corporate authority within the meaning of 
the constitution, as the people of the towns named have con- 
sented by their votes to the mode of appointment. By their 
votes they have, by a large majority, adopted this act, thus 
making the relators as commissioners corporate authorities, pro 
hac vice, for the purposes of this park, and have consented to the 
creation of this debt. We lay no stress upon the fact that the 
commissioners are nominally a corporation, for we do not hold 
it is in that capacity they can issue bonds or levy taxes to hind 
the people of these towns, but as township or corporate authori- 
ties, whose appointment has been assented to by the people 
within their jurisdiction. 

The constitution nowhere commits corporate objects or pur- 
poses irrevocably to authorities now existing, nor does it prohibit 
the committal of them to such corporate authority as may be 
called into life by the same law which creates the subject and 
commits it to their jurisdiction. 

The union of these towns was for a special purpose, and out- 
side of that purpose, they are left with all their functions undis- 
turbed precisely as they existed before the passage of the law. 
Establishing them, with their consent, as a park district, deprived 
them of none of the franchises bestowed on them as towns, and 
curtailed in no degree the fair proportions of either of them. 



29 

The manifest distinction, in brief, between this case and that 
relating to Lincoln Park is this : In that case the legislature un- 
dertook to compel the people of Chicago to incur a debt without 
the consent either of the people of the city, or of their corporate 
authorities, for it is impossible to hold that the commissioners 
of that park were corporate' authorities of the city of Chicago. 
In tli is case the people of these three towns, by voting for the 
law, have made the commissioners corporate authorities of such 
towns, and empowered them to assess the requisite tax upon the 
property of the towns. The tax is really self-imposed by means 
of agents not directly named by the people of these towns, but 
named by the governor by virtue of an authority conferred by 
their vote. 

We come now to consider the other objections made by the 
respondent's counsel to this act. 

One of the counsel for respondent asks, of what character is 
the corporation, thus endowed with extraordinary, unheard of 
and unknown powers and privileges? and after defining the 
several kinds of corporations, he asks, to which of these divisions 
of public corporations does the South Park Commissioners be- 
long? The answer is ready and obvious. By the vote of the 
people within the jurisdiction of their action they became a 
corporate authority quasi municipal, the object of their creation 
being of a municipal character, and of that alone. They became 
a public municipal corporation, and herein is found the answer 
to a prominent objection made by another of the counsel for 
respondent, based upon the fifteenth section of the act, which 
provides "that the real estate and personal property of said 
corporation shall be exempted from taxation and assessment." 
This, the counsel insists, is in the very teeth of the second 
clause of article nine, which declares that the "general assembly 
shall provide for levying a tax by valuation, so that every person 
and corporation shall pay a tax in proportion to the value of his 
or her property." It is argued that this park property belongs 
to these commissioners as a corporation. This is so by terms of 
the act. They hold the fee, but the usufruct is in the public, but 
holding it they hold it as a public corporation for public pur- 
poses, and was it ever heard that the property real or personal of 



30 

a public municipal corporation was subject to taxation? Is 
Union or Jefferson Park, in the city of Chicago, assessed for 
general taxes? Are their water-works so assessed, and their 
public squares and fire-engines, and other articles of personal 
property in their possession and ownership? 

The corporations aimed at by the clause in question are pri- 
vate, not public, corporations: and such is the universal under- 
standing. 

It is further objected that the fact that a majority of the votes 
of the three towns has been given to this act imparts to it no 
additional validity, for by the terms of the act it might be that 
one of the townships, by its large vote, could dominate over the 
other two, and thus subject the minority towns to an onerous 
burthen imposed without their consent. This might be so, and 
if so, the case would be like the case of Lincoln Park, in which 
we held it contrary to the plain behests of the constitution to 
impose a local burthen of such magnitude upon an unwilling 
people without first obtaining the consent of the people to its 
imposition. When a similar case shall arise, the decision will 
be doubtless the same; but the facts admitted by the pleadings 
show a majority of the votes of each of the towns was cast in 
favor of the act. 

But it is urged that this assent of the people amounts to noth- 
ing; that the legislature had not the power so to submit the 
enactment of a law to the popular vote ; that as the entire act is 
submitted to the decision of the people of the towns, it is not a 
law within the meaning and sense of the constitution. He insists 
that such an act is legislation; that the people, by their votes, 
make the law, when that power is exclusively confided to the 
general assembly. 

This is not an open question here. Its discussion is precluded 
by the decision of this court in the case of The People, &c, vs. 
Reynolds. 5 Gilmans, 1. 

That was a case where the legislature had passed an act for the 
division of Gallatin county and the formation of a new county 
from the same territory, but to take effect only on the contin- 
gency that a majority of the votes given should be cast in favor 
of such division. This same objection was made that the law 



31 

was not an emanation of the legislative will, but that of the 
voters of the county sought to be divided. Very able arguments 
were made in support of the objection, which it is not necessary 
to state in detail, it being sufficient to say they covered the whole 
ground and fully exposed the objection in its whole length and 
breadth. 

In a long and very able opinion by the late distinguished Chief 
Justice of this court, then Justice Caton, the constitutionality of 
the act was maintained, in which his associates concurred. The 
general proposition was discussed with great ability, that acts of 
the general assembly are not of necessity absolute, but may be so 
framed as to depend upon some future event or contingency for 
taking effect. That the act in question was complete when it 
left the legislature, although its principal provisions were to take 
effect upon a contingency, the determination of which did not 
depend upon the exercise of the legislative powers by the people, 
but upon an expression which they were authorized to make, 
rather in the execution than in the enactment of the law — an ex- 
pression to be made in a legitimate and ordinary way. The 
court say, if we take the action of all past legislatures as deter- 
mining what may and should properly be done in the exercise 
of legislative powers, we see that while they are bound to make 
the laws, yet those laws need not be absolute nor make every 
provision for doing that which they may authorize to be done. 
While all must be done under their sanction, yet they need not 
do all nor command all. A law may depend upon a future event 
or contingency for its taking effect, and that contingency may 
arise from the voluntary act of others. Of this class, the court 
say. are all laws creating private corporations, and a very large 
proportion of the laws creating municipal corporations. If we 
say that this is an unauthorized delegation of legislative power, 
we forget what is a proper and legitimate exercise of that power. 
If the saying be true that the legislature cannot delegate its 
power, it is only in its most general sense. We may well admit 
that the legislature cannot delegate its general legislative author- 
ity, still it may authorize many things to be done by others 
which it might properly do itself. "The legislature may pass 
all the laws requisite for the government of a particular city or 



32 

township or school district ; and who will doubt the propriety 
of its authorizing this to be done by the people within the limits 
of the city, town or district, by their local representatives, or 
even directly? This is making laws, and laws, too, of as bind- 
ing efficiency as if passed directly by the legislature." 

The case is square on the point now under discussion, and 
necessarily disposes of it. 

For a most exhaustive discussion of this subject, we refer to 
the cases of Alcorn v. Hawen, and the same v. Hill, (38 Missis- 
sippi, 652), where all the authorities, pro and con, are collated 
and commented upon with signal ability, and wherein a decision 
was pronounced in conformity to that in The People v. Reyn- 
olds, supra. In these cases it was held that the power to enact 
laws necessarily included the right in the law-making power to 
determine and prescribe the conditions upon which the law in a 
given case shall come into operation or be defeated; and this 
contingency may as well be the result of the vote of the people 
of the locality to be affected by the law as any other. 

The law of this case was discussed by the counsel and court 
with great power and ability, and may be read with profit and 
instruction. 

The remaining point is, the effect of the pendency of the 
chancery suit to enjoin these relators from proceeding under this 
law. 

In the case of the people on the relation of Mitchell v. War- 
field (20 Illinois, 160), which was a contest about the removal 
of the county seat of Saline county, and where a mandamus was 
applied for to compel certain official acts to be done by the re- 
spondent at the county seat, so deemed by the relator, and in the 
case of The People ex rel., &c, v. Wiant, decided at September 
term, 1868, which was also a contest growing out of the removal 
of the county seat of Du Page county, where a mandamus was 
applied for to compel the county treasurer to keep his office at 
the new county seat, and in both of which cases bills of injunc- 
tion had been filed, and in which were contested facts ; we said, 
as the parties had commenced proceedings in another tribunal, 
to obtain an adjudication of the question, this court would not, 
except in extraordinary cases, interfere by mandamus. In those 



33 

cases, facts were contested; in this there are no contested facts, 
the whole issue being on questions of pure law. 

As the granting a mandamus is a matter of discretion with the 
court, it was refused in the cases cited, because it was the opinion 
of the court the matters in controversy could be well determined 
in the suits pending. 

But looking at the nature of questions involved in this case, 
we are satisfied they cannot be appropriately or finally deter- 
mined in the suit pending, and complete justice done therein to 
all the parties; for, however the pending ease may lie deter- 
mined, it will he no bar to a suit of the same nature brought by 
another property owner, and so on until the list of owners is 
exhausted, and the duties cast upon the relators by the law must 
remain unperformed for an indefinite time. Justice cannot be 
done to them as public functionaries, nor to the public, by the 
determination of that suit, in whatever way it may he decided, 
as it would dispose alone of that ease, leaving the opportunity 
open of bringing other suits of the same kind in endless suc- 
cession. 

In conclusion, with the best light we have, we are satisfied the 
relators have shown a clear legal right to the writ for which they 
pray, and that they have no other adequate remedy to meet the 
exigencies of the case, and accordingly disallow the motion to 
quash, and direct a peremptory mandamus to issue, as prayed. 



At a Supreme Court, begun and held at Mount Vernon, on 
Tuesday, the first day of June, in the year of our Lord one thou- 
sand eight hundred and sixty-nine, within and for the First 
({rand Division of the State of Illinois: Present — Breese, Chief 
Justice; Charles B. Lawrence, Justice; Pinkney H. Walker, 
Justice. 

The People ex relatione South Pari- Commissioners, relators, v. 
The Judge of the Circuit Court of Cook County (E. S. Wil- 
liams) — Application for writ of mandamus. 

[Opinion by Breese, Chief Justice.] 
This is an application by the South Park Commissioners for a 
mandamus to compel the judge of the circuit court of Cook 



34 

county to appoint forthwith, on their petition, three disinterested 
freeholders of that count)', commissioners to fix the compensa- 
tion and assess the damages to be paid to the owners of the lands 
ahout to be taken by the relators for the South Park, under the 
provisions of the act of February 24. 1869, entitled "An act to 
provide for the location and maintenance of a park for the towns 
of South Chicago, Hyde Park and Lake." 

The only question presented in this record is the validity of 
the act cited. As that has I teen determined to be valid, and 
within the constitutional competency of the legislature to enact, 
in the case of the same commissioners against Salomon, the clerk 
of the county court, the mandamus, as prayed for, must be al- 
lowed. A peremptory mandamus will accordingly issue. 

I, E. A. D. Wilbanks, clerk of the Supreme Court of Illinois, 
do hereby certify that the foregoing is a true copy of the final 
opinion of the said Supreme Court in the above entitled cause, 
of record in my office. 

In testimony whereof I have set my hand and affixed the seal 
of the said Supreme Court, at Mount Vernon, this 18th day of 
September, in the year of our Lord one thousand eight hundred 
and sixty-nine. 

[seal.] P. A. D. WILBANKS, 

Clerk of the Supreme Court. 



At a Supreme Court, begun and held at Mount Vernon, on 
Tuesday, the first day of June, in the year of our Lord one thou- 
sand eight hundred and sixty-nine, within and for the First 
Grand Division of the State of Illinois : Present — Sidney Breese, 
Chief Justice; Charles B. Lawrence, Justice; Pinkney H. 
Walker, Justice. 

The People ex relatione South Bark Commissioners v. E. S. Wil- 
liams, Judge of the Cook County Circuit Court — Application 
for ivrit of mandamus. 

[Opinion by Breese„ Chief Justice,] 
This is an application by the South Park Commissioners for a 
mandamus to compel the judge of the circuit court of Cook 
county to appoint three freeholders of that county as park assess- 



35 

ors, agreeably to the provisions of section 7 of the act of the 
general assembly of February 24, 1869, entitled "An act to pro- 
vide for the location and maintenance of a park for the towns 
of South Chicago, Hyde Park and Lake.*' 

The seventh section of the act to which reference is made is as 
follows : 

Sec. 7. As soon as the amount required for the condemna- 
tion of the grounds selected for said park shall have been ascer- 
tained by said commissioners, with reasonable certainty, they 
shall apply to the judge of the circuit court of Cook county for 
the appointment of three freeholders of the county of Cook as 
park assessors. The commissioners shall give notice in one or 
more of the daily newspapers published in the city of Chicago 
of the time when such application will be made; and all parties 
interested may appear and be heard by the said judge touching 
such appointment. At the time fixed for such an application, 
the court, after bearing such persons as shall desire to lie beard 
touching such appointment, shall nominate and appoint three 
assessors for the purposes provided in this act. The said assessors 
shall proceed to assess the amount so ascertained upon property 
in the towns of South Chicago, \\\(\v Park and Lake, in Cook 
county, deemed benefited by reason of the improvement occa- 
sioned by the location of said park, as near as may be, in propor- 
tion to the benefits resulting thereto: Provided, That the aggre- 
gate of said benefits is equal to or greater than the amount of 
said damages; and in case the aggregate of the benefits is less 
than the damages, then the balance of the damages over the ben- 
efits shall be paid from the fund provided for in section eight of 
this act. Upon entering on the duties of their office, the said 
assessors shall make oath before the clerk of the said circuit court 
faithfully and impartially to discharge the duties of their office. 
They shall give at least ten days' notice in one of the said daily 
papers of the time and place of their meeting for the purpose of 
making said assessment, and may adjourn such meeting from 
time to time until the same shall be completed. In making the 
said assessment the said assessors shall estimate the values of the 
several lots, blocks or parcels of land deemed benefited by them, 
as aforesaid, and shall include the same, together with the 



36 

amount assessed as benefits, in the assessment roll. All parties 
interested may appear before said assessors, and may be heard 
touching any matter connected with the assessment. When the 
same shall be completed, it shall be signed by the assessors, and 
returned to the said circuit court, and shall be filed by the clerk 
thereof. The assessors shall thereupon give at least ten days' 
notice in one of the said daily papers of the filing of said assess- 
ment roll, and that they will, on a day therein named, apply to 
the said circuit court for confirmation of the same, which said 
notice shall be published at least ten days before the time fixed 
for such application. Said circuit court shall have power to 
revise, correct, amend or confirm said assessment in the whole or 
in part, and may make or order a new assessment in whole or in 
part, and the same revise and confirm upon like notice. All par- 
ties interested may appear before said circuit court, either in 
person or by attorney, when such application shall be mad.', and 
may object to said assessment, either in whole or in part, pro- 
vided all objections shall be in writing, and shall be filed at least 
three days before the time fixed for the application, and shall 
specify the lot, block or parcels of land on behalf of which ob- 
jection is made. After the confirmation of said assessment, the 
clerk of said circuit court shall file a copy thereof, under the 
seal of the said court, with the clerk of the county court of Cook 
county, and such assessment shall lie a lien upon the several lots, 
blocks or parcels of land assessed for benefits as aforesaid. Ten 
per cent, of the amount so ascertained shall be due and payable 
annually, and the clerk of said Cook county court shall include 
in the general tax warrants for each year, until the whole sum 
-hall be paid, for the collection of State and county taxes in said 
towns of South Chicago, Hyde Park and Lake, ten per cent, of 
the said assessments, in an appropriate column, to be termed 
"South Park Assessment," with the amount to be collected oppo- 
site the several lots, blocks or parcels of land assessed as afore- 
said ; and like proceedings in all respects shall be had for en- 
forcing the collection of the same as is now provided by law for 
the collection of State and county taxes. The money collected 
under the provision of this section shall be paid to the treasurer 
of Cook county, for which he and his sureties shall be respon- 



37 

sible, as fully as for any other moneys received by him as treas- 
urer of Cook county, and to be held by him in the same manner, 
and be subject to the same control and direction, as provided in 
this act for other moneys belonging to said corporation; and the 
treasurer of Cook county shall be entitled to receive one-half of 
one per cent., and no more of said moneys, as a full compensa- 
tion for receiving and disbursing the same" 

The judge of the circuit court refused to act upon the petition 
to appoint the park assessors, until this court should express an 
opinion that the act referred to is so far valid that park assess- 
ors ought to be appointed by him, and until it is determined that 
the petitioners have ascertained the amount for the required con- 
demnation of the ground for the park, as required by that act. 

These two questions are presented for our adjudication — the 
first and most important of which (the central question — the va- 
lidity of the act of Feb; 24) — was fully discussed, and its valid- 
ity established, in case of the same Relators v. Salomon, clerk of 
the county court of Cook county. 

The other question is to be determined by the provisions of 
the act itself. By reference to that, none will lie found specify- 
ing in what particular mode the park commissioners should as- 
certain the probable amount necessary to he raised to pay for 
the lands inclosed in the park: they must make a careful esti- 
mate, upon proper inquiry and examination — and that in ad- 
vance of tlie purchase or condemnation of the land wanted. They 
are sworn officers, and we know of no guide hut their own judg- 
ment as to the amount which may he required. It is not to he 
presumed such officers, .-worn well and properly to discharge the 
duties of their office for the interest of the public, would, from 
any consideration, swerve from that oath, nor do we see any 
inducement for them to do so. 

By the charter of most cities, special assessments are made in 
a like manner, and are levied in advance of the improvements 
contemplated. Proper officers are appointed to make such esti- 
mates. This law does not contemplate that the precise amount 
shall be estimated by the commissioners, but an approximation 
only, and there would seem to he no safer mode to effect this 
than through the judgment of sworn officers. 



38 

The great objection to proceeding to appoint the assessors try 
the circuit court, was evidently a doubi of the validity of the act 
itself, and as that is settled by the case of Salomon, supra, it is 
scarcely necessary to enlarge upon minor and subordinate con- 
siderations. 

On the point made by counsel that no means are provided by 
the act for paying the compensation to be made to the property 
owners, it is a sufficient answer to say that, by the fifth section, 
proceedings to condemn the land wanted, and not granted or 
purchased, can be instituted, and carried on in the manner pro- 
vided by the act of the general assembly of June 22, 1852, en- 
titled "An act to amend the law condemning the right of way 
for the purpose of internal improvement/' by which ample pro- 
vision is made for the payment of condemnation money, before 
the land condemned can he appropriated. 

If the damages assessed are not paid, the park commissioners 
cannot occupy the land, for it is the well-established doctrine of 
this court that in no other mode can an owner be deprived of 
his land through the exercise of the power of eminent domain. 
(Shute v. Chicago and Milwaukee Railroad Company, 26 111., 
435.) It has been held by this court that benefits may lie the 
compensation contemplated by the constitution (Stale v. Ecans, 
2 Scam., 208, and subsequent cases), thus paying for the land by 
the benefits conferred upon the owners by the contemplated im- 
provement. However unreasonable and unjust this may seem 
to be, it is the law of this court. 

A peremptory mandamus will issue according to the prayer of 
the petition. 

I, E. A. D. Wilbanks, clerk of the Supreme Court of Illinois, 
do hereby certify that the foregoing is a true copy of the final 
opinion of the said Supreme Court in the above entitled cause, 
of record in my office. 

In testimony whereof I have set my hand and affixed the seal 
of the said Supreme Court, at Mount Vernon, this 18th day of 
September, in the year of our Lord one thousand eight hundred 
and sixty-nine. R A D WILBANKS , 

[seal.] Clerk of the Supreme Court. 



39 
United States Supreme Court. 



J. \Y. Nesmith, et al. v. T. C. Sheldon, et at. 
In the Supreme Court of Ike United States — 
Tan fa;. Chief Justice. 

Vol. 7 Howard Reports, page TlG. 
The following opinion was delivered by the court: 
"It is the established doctrine of this court, that it will adopt 
"and follow the decisions of the State courts in the construction 
"of their own constitution and statutes, when that construction 
"has been settled by the highest judicial tribunal." 

'"After the decision above mentioned, therefore, the question 
"certified cannot be considered as open for argument in this 
"court." 



Supreme Court of Illinois. 



AMAXDA S. COOK VS. THE SOUTH PARK COMMISSIONERS. 



This was an appeal from the circuit court of Cook county, 
by Mrs. Amanda S. Cook, from an award of commissioners 
appointed by that court, on the petition of the South Park Com- 
missioners, in a proceeding for the condemnation, for park pur- 
poses, of certain real estate belonging to her. The proceedings 
were had under an act of the general assembly of February 24th, 
1869. The first sections provided for the organization of the 
Board of South Park Commissioners, which, by the terms of 
the act, became a corporate body. The fourth and second sec- 
tions provide that "the said commissioners, by this act, are 
"authorized and empowered to, and they shall, within ninety 
"days after their organization as aforesaid, or as soon thereafter 
"as practicable, select the following described lands situated in 
"the towns of South Chicago, Hyde Park, and Lake, in Cook 
"county, Illinois, to wit, (describing the lands), which said 
"lands and premises, when acquired as provided by this act, 
"shall be held, managed,'* &c. 



40 

The fifth section provides that in case of disagreement, con- 
demnation may proceed under the right of way act of June 22nd, 
1852. 

The sixth section provides that, "when the title to the land 
"selected for such park as herein provided, shall have been 
""acquired by said commissioners." &c, they shall acknowledge 
and record a plat. 

Section eighteen provided for a popular election in the three 
towns named, and that the act should take effect upon a ma- 
jority vote in the affirmative — not otherwise. 

in estimating the value of lands taken, and the amount of 
damages, the benefits were also to be estimated. 

On September 8th, 1870, the commissioners appointed to 
make the assessment, filed their report, estimating the compen- 
sation to be paid at $90,000. 

From this award Mrs. Cook appealed tc the circuit court, in 
which she had, January 16, 1871, judgment for $111,317.18, 
as the total value including interest. 

Both parties took exception to the rulings and judgment of 
the court, and respectively appealed to the Supreme Court. 

On the trial below, it was stipulated that Mrs. Cook was at 
the date of the passage of the law, and had been ever since the 
owner of the premises in fee. 

The statement of the testimony offered upon the trial, and the 
rulings of the court upon instructions asked by the parties, are 
embodied in the opinion of the court. 

Messrs. Scammon, McCagg & Fuller, for appellant. 

Messrs. Beckwith, Aver & Kales, for appellees. 

Mr. Justice Thorn tox delivered the opinion of the court. 

The law which authorized the commissioners to acquire lands 
to be held and controlled for a public park, described the lands 
to be selected. In determining the compensation to be paid to 
the owner of the lands taken, the chief question is, at what time 
shall their value be estimated? 

In behalf of the commissioners, it is assumed that the proper 
time was when the law became operative by ratification by the 
voters; that then the property was irrevocably appropriated for 
public use; the owners were then divested of the beneficial en- 



joymeni of it: deprived of all right to convey or improve it; 
and that nothing remained to be done but to ascertain and pay 
the compensation. 

The instructions given upon the trial assume that the land 
was taken when the law went into operation, without any act 
on the part of the corporate authorities, to condemn it, or ac- 
quire it in any other manner, and that it was devoted to public 
use by the enactment. 

On the part of the appellant, it is contended, that the legis- 
lature cannot transfer the property of one man to another; can- 
not donate it to public use by its own mere declaration. 

The constitution provides that "no freeman shall lie * * * 
"in any manner deprived of his life, liberty, or property, but 
"by the judgment of his peers, or the law of the land."' 

Mr. Webster, in his argument in the Dartmouth College case, 
lias given ;i very correct definition of the phrase, "the law of the 
"land," when he said: "By the law of the land, is most clearly 
"intended the general law which hears before it condemns, which 
"proceeds upon inquiry, and renders judgment only after trial. 
"The meaning is that every citizen shall hold his life, liberty, 
"property and immunities under the protection of the general 
"rules which govern society. 

"Everything which may pass under the form of an enactment, 
"is not the law of the land." 

This section of the constitution had reference only to the 
taking of the property of one man, and giving it to another. 
This is not within the scope of legislative authority, either with 
or without compensation. The citizen can only be deprived of 
his property, and the title transferred to another, by a fair trial 
and adjudication, according to the course of the common law. 
There can be no forced divestiture, except by judgment of law, 
when it is not taken for public use; the legislature cannot exer- 
cise judicial power, and therefore, mere legislation will not ac- 
complish the transfer. Newland v. Marsh, 19 HI., 376; Taylor 
v. Porter, 4 Hill., 140; Roys v. Prior, 14 111., 171. 

The act in question does not undertake to deprive one person 
of property, for the purpose of vesting it in another. It merely 
empowers the commissioners to select certain described lands, 



42 

and then recites "which said lands and premises when acquired 
"by said commissioners as provided by this act, shall be held, 
"managed and controlled * * * as a public park; for the 
"recreation, health, and benefit of the public, and tree to all 
"persons forever."' 

The following section provides that if the commissioners can- 
not agree with the owners of the real estate, "selected as afore- 
said," they may proceed to procure its condemnation in the 
manner prescribed in the act concerning right of way, approved 
June 22d, 1852. 

These provisions cannot properly be construed as an irre- 
vocable appropriation of the land, an absolute divestiture of the 
title, a positive prohibition upon any alienation or improvement, 
a change of the estate from ownership in fee, to a mere tenancy 
at will. This would be a dangerous and unwarranted exercise 
of power b}^ the legislature. 

The commissioners were authorized to "select.'' The term 
implies choice. To choose, signifies to take one thing rather 
than another. When we select, we choose. It is true that other 
lands than those designated, could not be taken, because it 
would have been in excess of the power, yet the commissioners 
might have refused to select. The law conferred an authority 
to be exercised, but not to be exercised at all hazards, and with- 
out regard to results. 

If the owners had insisted upon a most exorbitant price, and 
the probabilities were against a fair price by condemnation, the 
commissioners should be permitted to decline the purchase. 
The legislature certainly never intended to force the selection 
without regard to consequences. 

The words, too "when acquired as provided by this act," must 
have some meaning in determining the legislative intent. To 
acquire, expresses progressive and permanent action. It would 
be a solecism, to say that a man must accpiire an estate or a 
title, when the estate or title was complete in him. 

The lands were to be held as a public park, when acquired 
as provided. If no agreement could be made between the com- 
missioners and owners, then the lands were acquired by con- 
demnation. 



43 

The several provisions of the law under which the condemna- 
tion must be procured, are antagonistic to the position that the 
land was taken by force of the South Park act. 

Upon the filing of the petition, and notice given, commission- 
ers are to be appointed. They must hear the allegations and 
testimony of the parties interested, and then fix the compensa- 
tion to be paid to the owners of "lands to be taken/' for the 
purposes specified in the act. They must view and inspect the 
premises. It would be a farce to inspect lands taken, and ap- 
propriated for more than one year prior to their appointment. 

Again, it is provided that the "right and title" to the land 
required shall vest in the corporation, upon the payment of the 
compensation, and that the judgment shall he so entered, "with 
"the right to enter upon, use, and apply" the land. Scates' 
Comp., 483, 485. 

The language and plain intent of the statute are, that no 
right to the land shall inure to the corporation, until payment 
of the compensation. It may lie unnecessary to decide whether 
payment must precede any use or possession of the land ; but the 
constitution, without reference to the law, requires, in the taking 
of property for public use, by State or municipality, that there 
must he some adequate source of compensation, and that the 
owner of the properly shall be secure in the payment. He can- 
not merely he referred to a corporation of doubtful responsi- 
bility, and a judgment which may prove to be worthless. 

But, this question as to the right of the commissioners to 
take possession of the land in controversy, was determined in 
the case of The People v. Williams, 51 111., 63. In that case, 
where the same laws were under consideration, it was said that 
the park commissioners cannot occupy the land until the damages 
assessed are paid, and that in no other mode can an owner be 
deprived of his land through the exercise of the power of emi- 
nent domain. 

In regard to similar laws, it has always been the doctrine of 
this court, that the damages must he paid before possession of 
the land can be taken, or any right to it acquired. Chicago & 
Milwaukee Railroad Co. v. Bull, 20 111., 218; Johnson v. Joliet 
& Chicago Hail road Co., 23 III, 203; Shute v. Chicago & Mil- 
waukee Railroad Co.. 26 111., 436. 



44 

The inhibition in the constitution is, "nor shall any man's 
"property be taken, or applied to public use, without the con- 
"seni of his representatives in the general assembly, nor without 
"just compensation being made to him." 

The counsel for appellees insist that the word "taken," is not 
to be understood in its physical sense, because, under our statute 
the land cannot be actually entered upon, and applied to public 
use, until after the compensation has been ascertained and paid. 
The reason given is certainly peculiar. It is, that the constitu- 
tion does not mean an actual taking, for the statute prohibits 
an actual entry until the payment of the compensation. Even 
if the statute were in conflict with the constitution, the latter 
must control as the supreme law. But it is not. The statute 
provides that the title to the land, and the right to enter upon 
and use it, must follow the payment of the damages awarded. 

The law which created the park commissioners, by virtue of 
which alone they are constituted a corporate authority, refers 
to and adopts the law of June 22nd, 1852, as the one which 
must govern the commissioners in acquiring title to the land 
and the possession of it. 

This latter law requires that persons who may he appointed 
commissioners to assess damages, shall inspect "the lands to he 
"taken," not the lands already taken. 

In the construction of a law, we must consider every part, 
ponder the effect of every word, to ascertain the intent of the 
legislature. The law under consideration, evidently construed 
i he words, "taken or applied to public use," in a physical sense. 
When it required that compensation must precede any posses- 
sion, use or application of the land to the purpose intended, 
what was meant? The taking of the land — the appropriation 
of it — prior to the performance of the prerequisite of the stat- 
ute, would be utterly inconsistent with the obvious meaning of 
the words of the law. If the land cannot be entered upon or 
used before payment of the compensation, it cannot with any 
propriety of language, or with reference to the common sig- 
nification of the term, he said to be taken before payment. 

This would be a distortion of the sense of the word. It can- 
not, literally or metaphorically, have such meaning in connec- 



45 

tion with the statute. We have been referred to authorities in 
Massachusetts, and some iji other States, in which the question 
as to the time when property shall be deemed to be taken, is 
discussed. These decisions wore made with reference to the pe- 
culiar phraseology of statutes which differ somewhat from our 
own. 

The statute of Massachusetts required that railroad corpora- 
tions should file a certificate of the location of the road within 
a limited period. In the construction given to the statute, there 
is some slight discrepancy. 

In some cases it has been decided that the filing of the loca- 
tion should he considered the taking of the land, and conclusive 
upon the corporation and land owner. Boston & Providence 
Railroad Co. v. Midland Railroad Co., 1 Gray, 340: Hagan v. 
Boston & Mninr Railroad Co.. 2 Gray, 574. 

In other cases it was held that, as the company might never 
file a location, the question whether the tiling was the only act 
of taking was a difficult one: and that the tiling of a location 
might he regarded as prima fti<i<>, a taking in the ahsence of 
other proofs. Davison v. Boston & Maine Railroad Co., '^vd 
Gush., 91; Boynton v. Peterboro & Shirley Railroad Co., 4th 
Cush., 467. 

These decisions do not aid us very much. 

We think that the act lor the location and maintenance of 
the park, and the act to condemn lands for any public work, 
when considered together, do not hear the construction that the 
land of appellant was taken by the former act. If such were 
the necessary construction, the law must he pronounced a viola- 
tion of the constitution. The legislature has not the power by 
mere declaration of law, to set apart the land of the citizen, for 
the use of corporations and divest the owner of the right to sell 
and improve it. It cannot by arbitrary enactment, take prop- 
erty for public use, and limit the owners' right to recover com- 
pensation to the date of the law, when the property might 
greatly enhance in value between the passage of the law. and the 
time when proceedings to condemn are commenced. 

We therefore think that the evidence excluded by the court 
should have been admitted, and that the value of the land should 



46 

be estimated at the date of condemnation. This would approxi- 
mate more nearly to right and justice and to the time when the 
land is actually taken, as contemplated by the law. 

The judgment was entered in proper form, but it is in direct 
conflict with instructions given by the court. The court in- 
structed the jury that the owner of the land was liable for the 
rental value of the land for more than one year before the com- 
mencement of proceedings to condemn. The corporation had no 
right to enter upon or use the premises until the compensa- 
tion was fixed and paid. There was neither right nor title in 
the corporation prior to filing the petition. The title was in 
the owner, as well as the right of occupancy. 

Upon what principle of reason or law can the absolute owner 
of lands in possession be made chargeable with rent? The re- 
lation of landlord and tenant did not exist by any express agree- 
ment. Can it be implied? No one will assume that the com- 
missioners had the legal title, and tenancy will never be im- 
plied under any one who has not the legal estate. 

The appellant did not enter in subordination to the title of 
any other person, and never acknowledged any obligation to 
another. She was in possession as the owner in fee, and claim- 
ing adversely to all the world, and the proceedings for con- 
demnation were an acknowledgment of her title. The only hy- 
pothesis which can be made is, that mere legislation divested 
her of title, and made her an involuntary tenant of the cor- 
poration. The doctrine is monstrous, and cannot be sustained. 

Complaint is made of the refusal of the court to give certain 
instructions. The court did not err in refusing to give the 
eighth, ninth and tenth instructions for appellant. 

The eighth and ninth are substantially, that if lands adjacent 
to the park generally increased in value in consequence of the 
prospect of establishing a public park, then the lands of the 
appellant must share in such increase. This does not fairly or 
necessarily follow. The adjacent lands would probably from 
their peculiar situation, derive a special benefit, and were sub- 
jcel to a special burden. The lands needed for the park must 
lie purchased, and the park maintained by special assessments 
upon the adjacent lands. Their situation relatively was so dif- 



47 

ferent that they were not a proper standard by which to judge 
the value of the lauds taken for the park. 

The tenth instructoin is clearly objectionable. It directed 
that if one class of lands was unsalable, and another class salable, 
the latter class would form the better criterion to ascertain the 
true value of the lands in controversy. 

It was not proper that the court should assume as matter of 
law that one criterion was better than another. This would 
have been a usurpation of the functions of the jury. The rela- 
tive situations of the lands was a subject for the consideration of 
the jury, and they must determine its weight and its effect 
upon the value. 

It seems to us that the first two paragraphs of the instruc- 
tion given by the court upon its own motion, contains all the 
law which was necessary to aid the jury in determining the value 
of the lands. 

We think there was no error in refusing to allow interest on 
the amount of the verdict, intermediate its finding and return, 
and the rendition of the judgment of the court thereon. 

Appellant as well as the commissioners, made a motion to set 
aside the verdict, and for a new trial. The amount might have 
been paid if appellant had interposed no delay. In such case it 
is not right that the party causing or contributing to the delay, 
should he allowed interest. Williams v. Smith, 2 Caines, 252; 
People v. Gaine, 1 Johns., 343. 

At the time the court entered judgment upon the verdict of 
the jury, appellant insisted that the judgment should be abso- 
lute for the payment of the sum found. The judgment was en- 
tered in strict conformity to the statute. It could not have 
been in any different form. The court had no right to award 
an execution, for execution could not issue upon the judgment. 
Chicago and Mil. R. E. Co. v. Bull, 20 111., 218. 

The only mode to coerce the payment of the judgment, would 
be by mandamus. By this proceeding the commissioners could 
be compelled to levy and collect taxes to be applied in discharge 
of the damages awarded. 

But we are asked to decide whether the judgment will not 
by force and operation of law bear interest from the time of its 
rendition. 



4S 

When judgment has been entered upon the verdict, the rights 
of the parties are fully determined, if no appeal be taken, or 
writ of error be prosecuted. The absolute title to the land, and 
the right to enter upon and use it, only await the payment of the 
compensation which has been fixed. The amount to be paid is as 
fully and formally ascertained as is done by an ordinary judg- 
ment. The court had authority to render it. It only wanted 
one of the requisites of a common judgment — the award of an 
execution. 

Though no execution could be ordered, the judgment was the 
conclusion of the law upon the facts found by the jury. The 
allowance of a claim against an estate is a judgment. Judg- 
ments may be rendered against an executor or administrator 
for the debt of the deceased, and no execution can issue in either 
case, but they bear interest. We think that interest should be 
allowed upon judgments when final, in proceedings of this char- 
acter. They are within the spirit, if not terms, of the statute, 
winch allows interest upon all judgments recovered. 

Counsel for appellees contend that the court erred in refusing 
to permit proof of the price paid for other lands in the park 
lines, and contiguous to the lands in controversy. 

No cross error has been assigned upon this refusal; no argu- 
ment submitted on the part of appellant upon the question 
presented; and we cannot regard the relevancy of this testimony 
raised by the record. It would be unjust to appellant, to decide 
the question without a hearing from her. 

For the reasons given the judgment is reversed, and the cause 
remanded. 

Judgment reversed. 



49 



GENERAL PARK ACT 



AX ACT to enable the corporate authorities of two or more 
towns, for park purposes, to issue bonds in renewal of bonds 
heretofore issued by them, and to provide for the payment of 
the same; to make, revise and collect a special assessment on 
contiguous property, for benefits by reason of the location of 
parks and boulevards, and to make necessary changes in their 
location. [Approved June 16, 1871. In force July 1, 1871.] 

Section 1. Be it enacted by the People of the State of Illi- 
nois, represented in the General Assembly, That persons who 
have been appointed or otherwise selected as commissioners or 
officers, under and in pursuance of any act or acts of the general 
assembly of this state, winch has or have been submitted to the 
legal voters of one or more towns, and by them respectively 
adopted, for the purpose of locating, establishing, inclosing, im- 
proving or maintaining any public park, boulevard, drive-way, 
highway or other public work or improvement, are declared to be 
corporate authorities of such towns for the purposes named in 
such act or acts, whether such persons are authorized to dis- 
charge the duties imposed upon them as a corporation or other- 
wise. 

Sec. 2. Corporate authorities of towns who have been author- 
ized by law to issue bonds for the purpose of establishing, in- 
closing, improving or maintaining any public park, boulevard, 
drive-way, highway or other public work or improvement in 
such towns, may issue new bonds, payable not more than twenty 
years from the date thereof, and the same exchange for bonds is- 
sued by such corporate authorities for the same purpose. The 
said corporate authorities may purchase any bonds issued by 
them, at any rate not exceeding the par value thereof, and issue, 
in lieu of the same, bonds payable as aforesaid. Such new 
bonds shall be issued under the seal of said corporate authori- 



50 

ties, if they have one, and shall be signed by them and counter- 
signed by their secretary, if they have one, and bear interest not 
exceeding seven per cent, per annum, payable semi-annually, and 
the principal and interest may be made payable at any place or 
places within or without this state. The said bonds shall also 
contain a provision securing to said corporate authorities the 
right, if the said bonds or a sufficient number of them cannot 
be purchased at not exceeding one per cent, above the par value 
thereof, for the yearly sinking fund hereinafter provided, to pay 
and retire, at the end of each year after the date of said bonds, 
or so soon thereafter as due notice shall have been given, such 
number of the same as may be necessary for that purpose, to be 
selected by lot by said corporate authorities, in the manner here- 
inafter provided. It shall be the duty of said corporate authori- 
ties to keep an accurate register of all bonds issued by them, 
showing the number, date and amount of each bond, and said 
register shall at all times be open to the inspection of the public. 
The public park, boulevard, drive-way, highway or other public 
work or improvement, on account of which said bonds may be 
issued, shall be irrevocably pledged for the payment of the 
principal and interest thereof, and the towns in which such 
public park, boulevard, drive-way. highway or other public work 
or improvement, are in whole or in part situated, shall also be 
irrevocably bound for the payment of the same. Bonds issued 
under this act may be exchanged as aforesaid or sold by said 
corporate authorities for such prices as they may deem expe- 
dient; but the proceeds of bonds sold shall only be used for 
the payment or purchase of outstanding bonds which cannot be 
exchanged. The bonds received in exchange or purchased as 
aforesaid shall be canceled, whereof an entry shall be made upon 
the bond register of said corporate authorities showing the date, 
number and amount of each bond canceled, and no bonds shall 
be issued under this act exceeding the amount already issued, 
nor contrary to the provisions of section 12, article 9 of the 
constitution of this state, nor until provision is made by law 
for the collection of a direct annual tax sufficient to pay the 
interest on such bonds as it falls due, and also to pay and dis- 
charge the principal thereof on or before the time when the same 



51 

shall become clue. And whenever any provision has been made 
by any act or acts of the general assembly of this state, for the 
assessment and collection of an annual tax, in order to pay the 
interest on bonds issued by said corporate authorities, the pro- 
visions of said act or acts are hereby continued and extended 
so as to require the assessment and collection of said annual 
tax, not only for the purposes of said act or acts named, but for 
the payment of the interest on any bonds which may lie is-ucil 
under this act, and to provide for the annual payment of a part 
of the principal thereof. Officers collecting said annual tax are 
required, at the end of each month, to pay to said corporate 
authorities so much of said tax as has been collected; and for 
collecting and paying over of said annual tax no compensation 
shall be allowed, except the salary allowed by law to the collector 
thereof. And if, for any cause, any portion of said annual tax 
required to be assessed and collected as aforesaid shall, for any 
one or more years, fail to be collected, the said corporate au- 
thorities are required to add such deficiency or deficiencies to 
the amount required to lie assessed in the succeeding year or 
years; and the amount of such deficiency or deficiencies shall be 
by the proper officers assessed and collected, in the same manner 
as said annual tax, and as a part thereof. The said corporate au- 
thorities are required to cause said tax, and any deficiencies 
occurring as aforesaid, to be asssessed and collected as required 
by law, and to apply sufficient thereof, from time to time, to pay 
the interest upon said bonds issued, and which may be issued 
as the said interest shall fall due. And at the end of the year 
after the date of any bonds issued under this act, and of every 
year thereafter, the said corporate authorities shall, from the 
proceeds of said annual tax, set apart not less than three and 
one-fourth per cent, of the whole amount of bonds issued under 
this act, and a sum equal to the annual interest on said sum, at 
the rate of interest borne by said bonds, which sums shall be 
applied by said corporate authorities in the purchase of bonds 
issued by them, if the same can be obtained at not exceeding 
one per cent, above the par value thereof; and if the said cor- 
porate authorities cannot obtain said bonds, or sufficient of 
them, to absorb said fund at that price, then from the outstand- 



52 

ing bonds issued under this act, and not therefore selected, shall 
be selected by lot so many thereof as may he required to absorb 
the funds so set apart for a sinking fund. The said selection 
shall be made by said corporate authorities at the end of each 
successive year after the date of said bonds, or within one month 
thereafter, in the presence of one of the judges of the circuit 
court of said county, who, with said corporate authorities, shall 
make and sign duplicate certificates of the result thereof, one 
of which shall be filed in the office of said corporate authorities 
and the other in the office of the county clerk of said county. 
Notice of said selection, and of the numbers of the bonds so 
selected, shall be forthwith given by said corporate authorities 
in one or more newspapers published in said county and in the 
city of New York, and if the owners of said bends shall be reg- 
istered, notice to such owners shall also be given by letter mailed 
to the address of such owner at his place of residence if known, 
or shown upon said register. The interest on bonds selected by 
lot, as aforesaid, shall cease from and after the time when the 
semi-annual interest on the same shall fall due, next after said 
selection is made; and from the sums so set apart for a sinking 
fund shall be paid the bonds so selected by lot, as aforesaid, 
with interest until payment or until the same shall cease as 
aforesaid. The funds so set apart for a sinking fund shall not 
be used for any purpose other than purchasing bonds to he 
canceled, and paying bonds selected as aforesaid for the same 
purpose. The bonds so selected, when paid, and the bonds pur- 
chased, shall be canceled, a certificate whereof, stating the num- 
bers, date and amount of said canceled bonds, shall, from time 
to time, be made by said corporate authorities, and filed in the 
office of the county clerk of said county. 

Sec. 3. Corporate authorities of one or more towns, who 
have been authorized to make, establish or maintain any local 
improvement, in whole or in part, by special assessment or spe- 
cial taxation of contiguous property, or otherwise, may estimate, 
as near as may he, the probable cost of the lands taken, or to 
be taken or purchased for such improvement, or revise, enlarge 
and correct any estimate theretofore made, and make a new one 
of the same, and of the expenses of obtaining said lands, to- 



53 

gel her with the cost of making and collecting a special assess- 
ment to pay the cost of said lands and expenses, and shall appor- 
tion the estimated cost of said lands, expenses, and the cost of 
assessment as aforesaid, upon lands situated in said towns, by 
said corporate authorities deemed benefited by reason of said 
local improvement, as near as may be, in proportion to the 
benefits resulting thereto. And if said corporate authorities 
shall not deem the lands in said towns benefited to the full ex- 
tent of the estimated cost of the lands taken, or to be taken or 
purchased as aforesaid, and the costs and expenses aforesaid, 
then the said corporate authorities shall in Like manner appor- 
tion so much thereof as they shall deem the lands in said towns 
benefited. The said corporate authorities shall give at least ten 
days" notice, in one or more newspapers published in the county 
in winch such towns are situated, of the time and place of their 
meeting for the purpose of making said assessment, and may 
adjourn such meeting from time to time until the same shall 
be completed. In making the said assessment, the lots, blocks 
and parcels of land deemed benefited as aforesaid, shall be as- 
sessed according to the descriptions and divisions thereof ap- 
pearing of record in said county, on the day of the said first 
meeting, for the purpoes of making the said assessment, but no 
error in the description or division of any lot, block or parcel 
of land, in making said assessment, shall vitiate the same, pro- 
vided the premises are described with substantial accuracy. The 
said corporate authorities shall estimate the value of the several 
lots, blocks or parcels of land deemed by them benefited as afore- 
said, and shall include the same, together with the amount 
assessed for benefits, in an assessment hook or roll. All parties 
interested may appear before said corporate authorities, and may 
be heard touching any matter connected with the assessment. 
When the same shall he completed, it shall he signed by the said 
corporate authorities, or by a majority thereof, and returned to 
the circuit court of the county in which such towns are situated, 
and filed with the clerk of said court, whereupon the said cor- 
porate authorities shall give at least ten days" notice of the filing 
of said assessment roll, and that they will, on a day named, 
apply to the said circuit court for confirmation of the same. 



54 

Said notice shall be signed by said corporate authorities, or by 
a majority of them, and shall state the general nature of the 
improvement for which said assessment was made, and the 
towns, township, range and section in which the same is situated, 
without further description of its locality, and shall also state 
when the said assessment was tiled in said court, and the day 
when the said corporate authorities will apply to said court for 
confirmation of the same; but said notice need not contain a 
description of the lots, blocks or parcels of land assessed, nor 
the amount assessed upon them, or any of them, nor mention 
any particular law or laws of this state under which said assess- 
ment was made; which said notice shall be published in one or 
more newspapers published in the county in which said towns 
are situated, at least ten days before the time therein named 
for such application. When it shall appear to said court that 
proper notice has been given, it shall have power to hear, ad- 
judge and determine the matter of said application and all mat- 
ters connected therewith. Any person interested in any lot, 
block or parcel of land assessed, may appear therein, in person 
or by attorney, and object to said assessment: Provided, all ob- 
jections shall be in writing, and be filed in said court at least 
three days before the time fixed for said application, and shall 
specify the lots, blocks or parcels of land wherein the said per- 
son objecting is interested, in respect whereof objections are 
made, and the grounds thereof. Said court shall have power to 
revise, correct, amend and confirm the said assessment in whole 
or in part, and may without further notice or order make a new 
assessment in whole or in part, and the same confirm, or may 
order a new assessment to lie made in whole or in part, and the 
same may revise, correct, amend and confirm upon like notice as 
aforesaid, or upon such notice as it may prescribe ; but no order 
to make a new assessment in part, shall hinder or delay the con- 
firmation of the residue or the collection thereof. From and 
after the time the amount of any assessment shall be ascer- 
tained and confirmed by said court, as to any lot, block or parcel 
of land so assessed, the amount thereof shall be a lien thereon, 
and may be paid at any time. The said court shall divide the 
amount of said assessment into installments, and fix the amount 



55 

of the first installment, but the first installment shall not exceed 
twenty-five (25) per cent, of said assessment. The portion of 
said assessment, after deducting therefrom said first installment, 
shall be divided by the court into seven equal installments, 
which said installments shall be payable annually thereafter, 
and the court shall fix the time on or before which each of said 
installments shall severally be paid. All installments shall bear 
interest at the rate of seven per cent, per annum, from the time 
on or before which the payment of the first one is to be made. 
The said corporate authorities or their officer, from time to 
time, duly authorized by them, and to be mentioned in some 
order or orders of said court which it may from time to time 
make, shall have full power and authority to collect such assess- 
ments from the owners of such lands, and to give all proper 
receipts and discharges therefor. The orders of said court shall 
be conclusive evidence of the regularity of all previous pro- 
ceedings necessary to the validity thereof, and of all matters and 
things therein recited as having been heard and adjudged by 
said court. It shall be the duty of the clerk of said court to 
enter in said assessment book or books, or upon said assessment 
roll, all revisions, corrections and amendments of such assess- 
ment, and all new assessments made by the court, and all re- 
visions, corrections and amendments of the same, and all orders 
for now assessments, and all new assessments made in pursu- 
ance of such order, and all revisions, corrections and amend- 
ments of the same, together with all orders of the court in said 
proceedings. The said corporate authorities are required to 
furnish to the clerk of said court a duplicate copy of said assess- 
ment book and books, or roll, wherein shall be entered from time 
to time, by said corporate authorities, the several matters and 
things entered in said original assessment book or books, or 
upon said original assessment roll, which duplicate and the en- 
tries thereon shall from time to time, as they are made, be certi- 
fied by the clerk of said court under the seal thereof, as a true 
copy of the original ; and such duplicate copy of the assessment 
book and books, or roll, certified as aforesaid, shall be sufficient 
authority to said corporate authorities, or to their officer desig- 
nated therein, to collect any assessment therein confirmed as 



56 

aforesaid, and to receipt for and discharge the same. It shall 
be the duty of the officer having the custody of said original 
assessment book or hooks, or roll, to enter thereon, from such 
receipt or discharge, the fact of such payment, which entry shall 
he evidence of the same. After the proceedings in the said cir- 
cuit court shall he finally concluded and terminated, it shall 
lie the duty of the clerk thereof to deposit said, original assess- 
ment book and hooks, or roll, and all proceedings relative to the 
same, duly entered as aforesaid and properly certified, with the 
county clerk of the county in which such towns are situated. 
In case said assessments or any part thereof, so confirmed as 
aforesaid, shall not lie paid at the time or times fixed therefor 
by the orders of said circuit court, it shall be the duty of the cor- 
porate authorities to return to the county treasurer, or to some 
general officer of said county having authority to receive state 
and county taxes, a list of the lots, blocks and parcels of land so 
assessed upon which said assessment shall remain unpaid, and 
the amount unpaid upon each lot, block or parcel of land; and 
from and after the return of such delinquent list the said county 
treasurer, or other general officer of said county having author- 
ity to receive state and county taxes, as well as said corporate 
authorities, or their officer, shall have authority to receive 
any of said unpaid assessments, and to give all proper 
receipts and discharges therefor. It shall also be the 
duty of said corporate authorities to make and certify to the 
county court in which such towns are situated, a return, therein 
designating the said delinquent lands and the due and unpaid 
assessments against the same, and thereupon the said corporate 
authorities shall give notice, by publication in one or more of 
said newspapers, that they will, on a day in said notice named, 
apply to said county court for judgment against all delinquent 
lots, blocks or parcels of land upon which said assessment, or any 
part thereof, shall be unpaid. Such notice may be general, but 
must contain a description of the lots, 1 docks or parcels of land, 
and the names of parties interested, if known, and the amount 
due and unpaid, which notice shall be published in one or more 
of said newspapers at least ten days before the time fixed for 
making said application, and the said application may be made 



57 

on the day named, or any day of the same term, by the permis- 
sion of said court. The said corporate authorities and the said 
county treasurer, or other general officer oi said county to whom 
said delinquent list shall have been returned, shall respectively 

report to said court the respective lots, blocks and parcels of land 
upon which said assessment has been paid to them respectively 
alter the return of said delinquent lists as aforesaid. And 
thereupon said proceedings, orders and judgments shall be bad, 
as nearly as may be, as in cases of delinquent lands whereof 
judgment is prayed for the non-payment of state and county 
taxes, and the said judgments shall be conclusive of the regular- 
ity of all matters necessary to the validity thereof, excepting the 
giving of said notice of the application for judgment. After 
said notice for application for judgment shall have been pub- 
lished, the cost of publication shall be added to the assessment, 
as in the case of state and county taxes. After judgment shall 
have been rendered, the same shall be executed in the same man- 
ner, as nearly as may be, as is or may be provided by law for 
executing judgments for state and county taxes, but no judg- 
ment or sale of any lot, block or parcel of Land so assessed, for 
any one installment of said assessment, shall discharge the 
premises from any subsequent installment of the assessment; 
and proceedings for the non-payment of subsequent in- 
stallments may be had in the same manner as if 
no default had been made in previous ones. All moneys 
collected by said treasurer or other general officer of 
said county, and all moneys realized from the sales of said 
lands upon judgments as aforesaid, shall at once be paid over 
to said corporate authorities, who shall execute a proper receipt 
therefor. The said county treasurer, or other general officer, 
shall not be entitled to any compensation for receiving and dis- 
bursing of moneys by him under this act, or for services ren- 
dered by him as herein required, except the salary allowed him 
by law. Any and all moneys collected or obtained upon or out 
of said assessments may be applied by the said corporate author- 
ities to and for any of the uses and purposes named or intended 
by the act or acts under which they are organized. And if the 
proceeds of said assessments shall amount to a greater sum 



58 

than the cost of the lands, expenses and cost of assessment and 
collection as aforesaid, the overplus shall be applied by said cor- 
porate authorities towards making the improvement which they 
are authorized to make: Provided, that such excess shall not ex- 
ceed the sum of $25,000. If it exceeds that sum, then and in 
that case it shall be refunded pro rata to the parties paying such 
assessment. Any and all such corporate authorities, as afore- 
said, may avail themselves of the provisions and privileges of 
this act, notwithstanding any provisions in the several acts cre- 
ating them. 

Sec. 4. Corporate authorities of towns having the control 
or supervision of any public park, boulevard, driveway or high- 
way, which has been located in pursuance of a vote of the people 
of such towns,desiring to alter or change the location of the same 
or any part thereof, or of any of the boundary lines of the same, 
may, by petition in writing, apply to the circuit court of the 
county in which such towns are situated, for leave to make such 
alteration or change. Notice of such application shall he given 
by said corporate authorities in some newspaper published in 
said county, at least ten days before the day named therein 
when said application will be made. All persons inter- 
ested may appear before said circuit court, either in person or 
by attorney, when said application shall be made, and object to 
the granting thereof. After hearing all persons interested, if 
said court shall deem the granting of said application to be for 
the public interest, it shall make an order granting to such cor- 
porate authorities leave to make such alteration or change, or 
such part thereof, as it may deem for the public good, and grant- 
ing power to acquire by purchase, or under any law of this state 
for acquiring lands for public use, such additional lands as such 
change or alteration may, in the judgment of said court, render 
necessary, and if by reason of any such change or alteration 
any parcel of land shall no longer be deemed necessary or use- 
ful for the purposes of said park, boulevard, driveway or high- 
way, the said court may direct the same to be sold and conveyed 
for the use of said park, upon such terms and conditions as it 
may think proper. Damages sustained by any person injurious- 
ly affected by reason of any such change or alteration, shall be 



59 

ascertained and paid in the same manner as in other cases of 
the exercise of the right of eminent domain. The said corpor- 
ate authorities shall make, acknowledge and file for record in the 
office of the recorder of deeds for such county, a map showing 
any change or alteration made under any order of court as afore- 
said: Provided, that no application shall be made under or by 
virtue of this section, after the first clay of July, in the year of 
our Lord 1872, nor shall any change be made affecting the gen- 
eral location of any such park after said date. 

Sec. 5. When any town, towns or corporation is subject to 
taxation or special assessment for the improvement of any park 
or parks approached or connected by boulevard or boulevards, 
the money so raised by taxation or special assessment remaining 
unexpended, after defraying the expense for improving the 
boulevard or boulevards to said park or parks, shall be expended 
upon the parks (if more than one) in said town, towns or cor- 
poration, pvu rata, according to the number of acres in each, un- 
less already sufficiently improved; and it is hereby made the 
duty of the board of commissioners of any park or parks to cause 
the money to be so expended. The commissioners having in 
charge the maintenance and improvement of any public park 
or parks, boulevard, driveway, highway or other public improve- 
ment, under or by virtue of this act, shall, on the first day of 
December, in the year of our Lord 1871, and annually there- 
after, submit to the board of county commissioners or board 
of supervisors in the county in which the same may be located, 
a written or printed report of all their acts and doings in rela- 
tion to the parks and other improvements under their super- 
vision or control. 

Sec. 6. All laws and acts inconsistent with this act are here- 
by repealed. 



60 



EMINENT DOMAIN 



AN" ACT to provide for the exercise of the right of eminent 
domain. [Approved April 10, 1872. In force July 1, 
1872. E. S. 1875, p. 475.] 

Section 1. Be it enacted by the People of the State of Illi- 
nois, represented in the General Assembly, That private prop- 
erty shall not be taken or damaged for public use, without just 
compensation; and that in all cases in which compensation is 
not made by the state in its corporate capacity, such compen- 
sation shall be ascertained by a jury, as hereinafter prescribed. 
| See Const., art. 2, Sec. 13, p. GO; art. 11, Sec. 14, p. 79.] 

Sec. 2. That in all cases where the right to take private 
property for public use, without the owner's consent, or the right 
to construct or maintain any public road, railroad, plankroad, 
turnpike road, canal or other public work or improvement, or 
which may damage property not actually taken, has been here- 
tofore or shall hereafter be conferred by general law or special 
charter upon any corporate or municipal authority, public body, 
officer or agent, person, commissioner or corporation, and the 
compensation to be paid for or in resjject of the property sought 
to be appropriated or damaged tor the purposes above men- 
tioned cannot be agreed upon by the parties interested, or in 
case the owner of the property is incapable of consenting, or his 
name or residence is unknown, or he is a non-resident of the 
state, it shall be lawful for the party authorized to take or dam- 
age the property so required, or to construct, operate and main- 
tain any public road, railroad, plankroad, turnpike road, canal, 
or other public work or improvement, to apply to the judge of 
the circuit or county court, either in vacation or term time,where 
the said property or any part thereof is situate, by filing with the 
clerk a petition, setting forth, by reference, his or their authority 
in the premises, the purpose for which said property is sought 



61 

to be taken or damaged; a description of the property, the names 
of all persons interested therein as owners or otherwise, as ap- 
pearing of record, if known, or if not known stating that fact, 
and praying such judge to cause the compensation to be paid to 
the owner to he assessed. If the proceedings seek to affect the 
property of persons under guardianship, the guardians, or con- 
servators of persons having conservators, shall be made parties 
defendant, and if of married women their husbands shall also be 
made parties. Persons interested, whose names are unknown, 
may be made parties defendant by the description of the un- 
known owners; but in all such cases an affidavit shall be filed by 
or on behalf of the petitioner, setting forth that the names of 
such persons are unknown. In eases where the property is sought 
to be taken or damaged by the state for the purpose of establish- 
ing, operating or maintaining any state house or state charitable 
or other state institutions or improvements, the petition shall be 
signed by the governor or such other person as he shall direct, or 
as shall be provided by law. 

Sec. 2. If such petition be presented to a judge in vacation. 
the judge shall note thereon the day of presentation, and shall 
also note thereon the day when he will hear the same, and shall 
order the issuance of summons to each resident defendant, and 
the publication of notice as to each non-resident defendant, and 
the clerk of the court shall at once issue the summons and give 
the notices accordingly. 

Sec. 4. Service of such summons and publication of such 
notice shall be made as in cases in chancery. 

Sec. 5. Causes may be heard by such judges in vacation as 
well as in term time, but no cause shall be heard earlier than 
ten clays after service upon defendant, or upon due publication 
against non-residents. Any number of separate parcels of prop- 
erty, situate in the same county, may be included in one peti- 
tion, and the compensation for each shall be assessed separately, 
by the same or different juries, as the court or judge may direct. 
Amendments to the petition, or to any paper or record in the 
cause, may be permitted whenever necessary to a fair trial and 
final determination of the questions involved. Should it be- 
come necessary at any stage of the proceedings to bring a new 



62 

party before the court or judge, the court or judge shall have 
the power to make such rule or order in relation thereto as may 
be deemed reasonable and proper; and shall also have power 
to make all necessary rules and orders for notice to 
parties of the pendency of the proceeding, and to issue all 
process necessary to the execution of orders and judgments as 
they may be entered. 

Sec. (i. In cases fixed for hearing of petition in vacation, it 
shall be the duty of the clerk of the court in whose office the 
petition is filed, at the time of issuing summons or making pub- 
lication, to write the names of each of sixty-four disinterested 
freeholders of the county on sixty-four slips of paper, and. in 
presence of two disinterested freeholders, cause to be selected 
from said sixty-four names twelve of said persons to serve as 
jurors — such selection to be made by lot and without choice or 
discrimination; and the said clerk shall thereupon issue venire, 
directed to the sheriff of his county, commanding him to sum- 
mon the twelve persons so selected as jurors to appear at the 
court house in said county, at a time to be named in the renin 1 . 

Sec. 7. The petitioner, and every party interested in the as- 
certaining of compensation, shall have the same right of chal- 
lenge of jurors as in other civil cases in the circuit courts. If 
the panel be not full by reason of non-attendance, or be exhaust- 
ed by challenges, the judge hearing such petition shall desig- 
nate by name the necessary number of persons, of proper quali- 
fication, and the clerk or justice shall issue another venire, re- 
turnable instanter, and until the jury be full. 

Sec. 8. When the jury shall have been so selected, the court 
shall cause the following oath to be administered to said jury: 

"You and each of you do solemnly swear that you will well 
and truly ascertain and report just compensation to the owner 
(and each owner) of the property which it is sought to take or 
damage in this case, and to each person therein interested, ac- 
cording to the facts in the case, as the same may be made to 
appear by the evidence, and that you will truly report such com- 
pensation so ascertained: so help you God." 

Sec. 9. Said jury shall, at the request of either party, go 
upon the land sought to be taken or damaged, in person, and 



63 

examine the same, and after hearing the proof offered make their 
report in writing, and the same shall be subject to amendment 
by the jury, under the direction of the court or the judge, as the 
case may be, so as to clearly set forth and show the compensa- 
tion ascertained to each person thereto entitled, and the said 
verdict shall thereupon lie recorded: Provided, that no benefits 
or advantages which may accrue to lands or property affected 
shall be set off against or deducted from such compensation, in 
any case. 

Sec. 10. The judge or court shall, upon such report, pro- 
ceed to adjudge and make such order as to right and justice 
shall pertain, ordering that petitioner enter upon such prop- 
erty and the use of the same, upon payment of full compensa- 
tion, as ascertained as aforesaid; and such order, with evidence 
of such payment, shall constitute complete justification of the 
taking of such property. 

Sec. 11. Any person not made a party may become such by 
filing his cross petition, setting forth that he is the owner or 
has an interest in property, and which will be taken or dam- 
aged by the proposed work; and the rights of such last named 
petitioner shall thereupon be be fully considered and deter- 
mined. 

Sec. 12. In all cases, in either the circuit or county court, or 
before a circuit or county judge, an appeal shall lie to the su- 
preme court. 

Sec. 13. In cases in which compensation shall be ascertained 
as aforesaid, if the party in whose favor the same is ascertained 
shall appeal such proceeding, the petitioner shall, notwithstand- 
ing, have the right to enter upon the use of the property upon 
entering into bond, with sufficient surety, payable to the party 
interested in such compensation, conditioned for the payment 
of such compensation as may be finally adjudged in the case 
and in case of appeal by petitioner, petitioner shall enter into 
like bond with approved surety. Said bonds shall be approved 
by the judge before whom such proceeding shall be had, and 
executed and filed within such time as shall be fixed by said 
judge. 

Sec. 1-4. Payment of compensation adjudged may, in all 



64 

cases, be made to the county treasurer, who shall, on demand, 
pay (In' same to the party thereto entitled, taking receipt there- 
for, or payment may be made to the party entitled, his, her or 
their conservator or guardian. 

Sec. 15. The court or judge shall cause the verdict of the 
jury and the judgment of the court to be entered upon the rec- 
ords of said court. 

Sec. 16. All laws and parts of laws in conflict with the pro- 
visions <>f tli is act are hereby repealed: Provided, that this act 
shall not be construed to repeal any law or part of law upon the 
same subject passed by this general assembly; but in all such 
cases this act shall be construed as providing a cumulative rem- 
edy. 



EEVENUE LAW APPLICABLE TO COLLECTION OF 

THE ASSESSMENT. 



Section 178. When any special assessment made by any 
city, town or village, pursuant to its charter, or by any cor- 
porate authorities, commissioners or persons, pursuant to law, 
remain unpaid in whole or in part, return thereof shall be made 
to the county collector on or before the tenth day of March next 
after the same shall have become payable, in like forms as re- 
turns are made for delinquent land tax. County collectors shall 
collect, account for, and pay over the same to the authorities or 
persons having authority to receive the same, in like manner 
as they are required to collect, account for and pay over taxes. 
The county collector may, upon return of delinquent special as- 
sessments to him, transfer the amounts thereof from such re- 
turns to the tax books in his hands, setting down therein, op- 
posite the respective tracts, or lots, in proper columns to be pre- 
pared for that purpose, the amounts assessed against such tract 
or lot. [As amended by act approved May 3, 1873. See Sees. 
279, 299.] 

Sec. 179. When any special assessment is returned against 
property, the taxes upon which shall have been paid to the town 



65 

or district collector, it shall be the duty of the county collector, 
to cause demand to be made for the payment of such special as- 
sessment, or a notice thereof to be sent by mail, or otherwise, 
to the owner, if his place of residence is known. The certificate 
of a collector that such demand was made, or notice given, shall 
be evidence thereof. 

Sec. 180. On the application of any person to pay any tax 
or special assessment upon any real property, it shall be the dirty 
of the county collector to make out to such person a receipt, in 
which shall be noted all taxes and assessments upon such prop- 
erty, returned to such collector and not previously paid. 

Sec. 181. County collectors shall have the same power, and 
may proceed in the same manner for the collection of any tax 
on real or personal property, as is or may be given to town or 
district collectors. 

AN ACT in relation to the collection of taxes and special as- 
sessments. | Approved and in force May 2, 1873.] 

Whereas, certain requirements of the general revenue Law 
of this state, relating to the mode of advertising the list of de- 
linquent taxes and special assessments, to making application 
for judgment thereon, and the manner of making the tax sale, 
are impracticable; and whereas, it is desirable to remove exist- 
ing defects as to the manner of collecting the taxes and special 
assessments ; therefore, 

Section 1. Be it enacted by the People of the Stale of Illi- 
nois, represented in the General Assembly: When a return to 
the county collector has been made or shall hereafter be made of 
any real estate delinquent for any special assessment, or annual 
installment thereof, levied by any incorporated city, town 
or village, or by any corporate authorities, commis- 
sioners or persons, pursuant to law, which assessment or in- 
stallment thereof is required by law to be included in the ad- 
vertisement and notice of application for judgment for state and 
comity taxes, and the description or sub-division of any real 
estate described in such return, is different from the description 
or sub-division thereof as described in the town or district col- 



lector's book returned to such county collector, it shall and may 
be lawful for the county collector to advertise all the real estate 
delinquent for any such assessment described in such return, 
according to the description thereof, as contained in such re- 
turn; but such advertisement shall be made at the same time, 
and shall form part of his advertisement of real estate delin- 
quent for state and county taxes. [See ►Sees. 178-188.] 

Sec. 2. The said real estate, so advertised, may be described 
in the county collector's delinquent return, according to the de- 
scription thereof, as contained in such return and advertisement; 
and like proceedings shall be had to the application for judg- 
ment, and the judgment thereon, the sale and issuance of the 
certificate of the sale thereof, redemption from such sales and 
issuance of deeds thereon, as may be required by law to be had 
in regard to lands delinquent for state and county taxes. 

Sec. 3. Any incorporated city, town or village, or corporate 
authorities, commissioners, or persons interested in any such 
special assessment or installment thereof, may become purchaser 
at any sale, and may designate and appoint some officer or per- 
son to attend and bid at such sale on its behalf. 

Sec. 4. Whereas many special assessments are now in process 
of collection, whereby an emergency exists why this act should 
take effect immediately: therefore, this act shall take effect and 
be in force from and after its passage. 



APPOBTIONMENT OF ASSESSMENTS. 



AN" ACT concerning the Apportionment of Special Assessments, 
payable in Installments. 

Section 1. Be it enacted by the People of the State of Illi- 
nois represented in the General Assembly: That in all cases 
where any special assessment, payable in installments, has been, 
or hereafter shall be, made by any corporate authority for sup- 
plying water, or other corporate purpose, and the owner or own- 
ers of any lot, block or parcel of land, so assessed, or some of 



67 

them, shall desire to subdivide the same, and to apportion such 
assessment and the several installments thereof, in such man- 
ner that each parcel of such proposed subdivision shall bear its 
just and equitable proportion thereof, the same may be done in 
the manner following, to wit: The owner or owners of such lot,, 
block or parcel of laud shall present to such corporate authority 
a petition, setting forth: 

1. The descriptive character of the assessment, and the date 
of the confirmation of the same 

2. The names of the owners. 

3. A description of the land proposed to be subdivided, to- 
gether with the amount of each installment thereon, and the 
year or years for which the same are due. 

4. A plat showing the proposed subdivision. 

5. The proposed apportionment of the amount of each in- 
stallment on each lot or parcel, according to such proposed sub- 
division. Such petition shall lie acknowledged in the manner 
provided for the acknowledgment of deeds, and if such corporate 
authority shall be satisfied therewith; they shall cause to lie 
endorsed upon, or attached to, such petition their approval, by 
their clerk or secretary, under their corporate seal, and the same, 
so approved, shall lie filed and recorded in the office of the coun- 
ty clerk in which such land shall be situate: and such appor- 
tioned assessment shall stand in place of the original assessment, 
and the same and the several installments thereof shall be 
deemed duly apportioned, and the several amounts so appor- 
tioned shall be liens upon the several parcels charged i-espec- 
tively; and for the purpose of collecting the same, all proceed- 
ings shall be had and taken as if said assessment and install- 
ments had been made and apportioned in the first instance, ac- 
cording to such apportioned description and amounts, and the 
respective owners shall be held to have waived any and all ob- 
jections to such assessment, and the assessment aforesaid: Pro- 
vided this act shall not apply to any lot, block or parcel of land 
on which there shall remain due and unpaid any installment. 
In case assessors are unable to agree as to such apportionment, 
or any of them are under legal disability, one or more of them 
may file a petition with the circuit court of the county in which 



68 

such land so assessed is situate, substantially in form as herein- 
before provided ; and in such ease, such corporate authority, to- 
gether with all owners or persons interested, not joined as peti- 
tioners, and unknown owners, if any, shall be made parties de- 
fendant : and all proceedings in relation thereto shall be had as 
in eases in chancery. The court may hear and determine the 
ease according to the right of the matter. A copy of the record 
of all the proceedings of the court in the premises, in ease of 
an apportionment duly certified, shall be filed and recorded in 
the office of such county clerk, and the same shall thereupon, as 
to the said land embraced therein, the owners thereof, the ap- 
portionment aforesaid, and the collection of the several amounts 
apportioned, have the same force and effect, as is heretofore pro- 
vided, as in cases where such corporate authorities shall approve 
of a petition, and file and record the same. 



69 



ORDINANCES 



AX ORDINANCE for the regulation and government of the 
public park, which, by law. is under the control and govern- 
ment of the South Park Commissioners, and for the ap- 
pointment of a police force, and defining the powers and 
duties of the officers thereof. 

Whereas, by an act of the general assembly of the State of 
Illinois, entitled an act to provide for the location and main- 
tenance of a park for the towns of South Chicago, Hyde Park 
and Lake, it is provided as follows, to-wit: 

"The said board shall have full and exclusive powers to gov- 
ern, manage and direct said park; to lay out and regulate the 
same; to pass ordinances for the regulation and government 
thereof ; to appoint such engineers, surveyors, clerks and other 
officers, including a police force, as may he necessary; to define 
and prescribe their respective duties and authority; fix the 
amount of their compensation ; and, generally, in regard to 
said park, they shall possess all the powers and authority now 
by law conferred upon or possessed by the common council of 
the city of Chicago, in respect to public squares and places in 
said city." 

Therefore, be it ordained by the South Pari- Commissioners as 

follows: 

Section 1. The said park, which is under the management 
and direction of the South Park Commissioners, shall be. and 
the same is hereby designated, as the South Park. 

Sec. "3. No person shall, without the consent of the superin- 
tendent, play at ball, cricket, or any other game or play what- 
ever, in said park. 

Sec. 3. No person shall climb or walk upon any wall or 
fence of said park. 



70 

Sec. 4. Cattle, horses, goats, swine, or other animals, or 
domestic fowls, shall not be turned into said park, or allowed 
to run at large therein. 

Sec. 5. No dog or bitch, or domestic fowl, belonging to any 
officer or employee of said commissioners residing within the 
limits of said park, shall be permitted to run at large. 

Sec. 6. All persons are forbidden to carry fire arms, or to 
throw stones or other missiles within said park. All persons are 
forbidden to cut, break, or in any way injure or deface the trees, 
shrubs, plants, turf, or any of the buildings, fences, bridges, or 
other construction or property within or upon said park. 

Sec. 7. No person shall converse with, or in any manner 
hinder, those engaged in constructing or repairing said park. 

Sec. 8. No animal shall be driven or ridden in said park, 
at a rate of speed exceeding eight miles per hour. 

Sec. 9. No vehicle, or horse, or other animal, shall be per- 
mitted on the foot walks, the same being assigned exclusively 
to pedestrians; nor shall any vehicle, or horse or other animal 
of burden, go or be taken upon any part of said park, except 
upon the carriage drives and upon such places as are appropri- 
ated for carriages at rest. 

Sec. 10. No vehicles or animals shall be permitted to stand 
upon the drive or carriage roads of said park, or of any part 
thereof, to the obstruction of the way, or the inconvenience of 
travel; nor shall any person solicit passengers within said park 
without consent of the board. 

Sec. 11. No person shall, within said park, expose for sale 
any article or thing, nor shall any hawking or peddling be al- 
lowed therein. 

Sec. 12. No omnibus, wagon, cart, dray, truck, or other 
vehicle for carrying goods, merchandise, manure, or other arti- 
cles, except such as are engaged in repairing or constructing 
said park, shall be allowed to enter the same. 

Sec. 13. No language, abusive, insulting, obscene, or calcu- 
lated to occasion a breach of the peace, shall be permitted in 
said park, nor shall persons tell fortunes, play at any game of 
chance, at any table or instrument, be drunk, or do any inde- 
cent acts therein. 



71 

Sec. 14. No person shall bathe or fish, or go or send, or ride 
any animals into the waters of said park, nor shall any person 
disturb any fish, fowl or other animals kept therein, or throw 
or place any article or thing into the waters or upon the grounds, 
thereof. 

Sec. 15. No person shall discharge, or set, or touch off, or 
enkindle, or operate any manner of fire, or fireworks in the said 
park. 

Sec. 16. No person shall, in the said park, post or fix any 
notice or bill; nor shall such be posted or fixed on any tree, 
fence, or any place therein. 

Sec. 17. No person shall, in the said park, play any musical 
instrument, nor carry or display any flag, banners, transparen- 
cies, or target. 

Sec. 18. No band or company shall be permitted to parade, 
drill; or perform any movements, evolutions or ceremony in said 
park without the consent of the park commissioners. 

Sec. 19. No funeral procession, or hearse carrying a de- 
ceased body, shall be in the said park permitted. 

Sec. 20. No horse or other animal shall be permitted to go 
upon any grass or lawn, nor shall any person be permitted to 
go thereon except whore the word "common*' shall be posted 
to indicate the permission so to do. 

Sec. 21. Any member of the South Park police shall 
have power to arrest, and commit for examination, any person 
who shall not, when directed, desist from any violation thereof. 

Sec. 22. Any person who shall disobey, or neglect, fail, or 
refuse to comply with this ordinance, or any section thereof, ex- 
cept when otherwise herein provided, shall, on conviction there- 
of, pay a fine of not less than five, or more than one hundred 
dollars. 

Sec. 23. The police force of said South Park Commission- 
ers, shall consist of one captain, three sergeants, and such 
number of policemen, as shall from time to time be appointed, 
and they shall hold their respective offices during the pleasure 
of the park commissioners. The captain of police shall have the 
general charge of the police force, subject to such rules and 
regulations as shall from time to time, be established, and it 



72 

shall be his duty to report to the commissioners, in writing, l he 
delinquency of any member of the police force, and may suspend 
any such member, until such delinquency shall be acted upon 
by the commissioners. 

Sec. 24. The several members of the police force, when on 
duty, shall devote their time and attention to discharge of the 
duties of their station according to the ordinance, rules, and 
regulations and directions of the superintendent, and it shall 
be their duty, to the best of their ability, to preserve order, 
peace, and quiet, and to enforce the laws and the ordinances of 
said commissioners, and they shall not engage in conversation 
with an employe of the park during working hours, except in 
the line of duty; they shall have the power to arrest any per- 
sons in the park found in the act of violating any law or ordi- 
nance, or abetting and aiding in any such violation, and shall 
take all such persons so arrested, as follows, to wit: when the 
offense is committed in that portion of the park, situated in the 
town of Hyde Park, to some justice or magistrate in Hyde 
Park, when the offense is committed in that portion of the park 
situated in the town of Lake, to some justice or magistrate in 
said town of Lake, and when the offense is committed in that 
portion of the park situated in the town of South Chicago, to 
some justice of the peace in said town of South Chicago. 

Sec. 25. Whoever, in said park, shall resist any member of 
the police force in the discharge of his duty, or shall in any way 
interfere with, or hinder or prevent him from discharging his 
duty, as such member, or shall offer or endeavor to do so ; and 
whoever shall in any manner assist any person in custody of 
any member of the police force, to escape, or attempt to escape, 
from such custody, or shall rescue, or attempt to rescue, any 
person in custody, shall he fined not less than five dollars, or 
more than one hundred dollars. 

Sec. 26. The superintendent, in cases of emergency, is hereby 
authorized and empowered to appoint special policemen, and 
such special policemen shall have the same power and authority 
of regular policemen, provided the appointment of such special 
policemen shall in no case continue for a period exceeding 
twentv-four hours. 



73 

Sec. 27. The sergeant of police shall perform the duties of 
the captain when the latter shall be absent from duty. 

Sec. 28. The police force shall be uniformed as follows: 
Grey frock coat, pants and vest, and cap with brass buttons, 
and black cord on leg of the pants. 

Sec. 29. Any person who shall falsely represent or personate 
any of the members of the police force, or who shall maliciously. 
with intent to deceive, ust' or imitate any of the signs, signals, 
or devices adopted and \\>in\ by the police department, or shall 
wear in public the uniform adopted as the police uniform, after 
having been removed or suspended, shall be subject to a fine of 
not less than five dollars nor more than one hundred. 

Sec. 30. These ordinances shall take effect and be in force 
from and after the 19th day of November, 1875. 



Jurisdiction of Justices. 

Sec. 14. "Justices of the Peace shall have jurisdiction in 
"all cases for violation of the ordinances of cities, towns, or 
"villages." [B. S. 1874, 639.] 

Justices of the Peace and Police Magistrates have jurisdic- 
tion to enforce the foregoing ordinances, as the Park Commis- 
sioners are the corporate authorities of towns for park purposes. 
The act which provided for their appointment, sec. 13, is as 
follows : 

"Sec. 13. The said board shall have the full and exclusive 
power to govern, manage and direct said park; to lay out and 
regulate the same; to pass ordinances for the regulation and 
government thereof ; to appoint such engineers, surveyors, clerks 
and other officers, including a police force, as may be necessary; 
to define and prescribe their respective italics and authority; 
fix the amount of their compensation; and generally, in regard 
to said park, they shall possess all the power and authority now 
by law conferred upon, or possessed by the common council of 
the city of Chicago, in respect to the public squares and places 
in said city; and it shall be lawful for them to commence the 
improvement of said park as soon as they have obtained one hun- 
dred acres of the premises herein described." 



74 

See also ease of People ex rel. Wilson v. Salomon, supra, by 
which it is decided that the commissioners are corporate author- 
ities of towns for park purposes, as set forth in the Park Act, 
sec. 13 of which, as above quoted, gives them the same power 
that is enjoyed hy the Common Council of Chicago over the 
parks in Chicago. By the charter of Chicago, the common coun- 
cil is authorized to pass and enforce ordinances for the govern- 
ment and protection of all parks in the city, within the control 
of the city government. 



75 



HISTORICAL 



The South Park Act was approved Feb. 21th, 1869, and the 
act amendatory and supplementary thereto was approved April 
16th, 1869; whereupon, on the sixteenth day of April, A. D. 
1869, John M. Wilson, George W. Gage, Chauncey T. Bowen, 
L. B. Sidway and Paul Cornell, having been duly appointed 
commissioners, qualified as such ; and on the thirtieth day of 
April, 1869, organized as a board, by the election of John M. 
Wilson as president, Paul Cornell, secretary, George W. Smith, 
treasurer, and George W. Gage, auditor. 

Chauncey T. Bowen's term of office having expired on the first 
of March, 1870, he was re-appointed, and afterwards, on the 
first day of February. 1871, he having resigned, the vacancy was 
filled by the appointment of Potter Palmer. George W. Gage's 
term having expired on the 1st of March, 1871, he was re- 
appointed. Paul Cornell's term having expired on the first of 
March, 1872, he was re-appointed. On the 2nd of May, 1872, 
Hon. Jno. M. Wilson resigned, and C. T. Bowen was appointed 
to fill his place, and in March, 1873, the time for which he was 
appointed having expired, he was re-appointed to serve for five 
years. L. B. Sidway's term expiring in March, 1874, he was 
re-appointed for five years. In April, 1874, Potter Palmer re- 
signed, and James Morgan was appointed in his place. 

Mr. Cornell resigned the office of secretary on the first day 
of March, 1871, and William L. Greenleaf was appointed to fill 
the vacancy. On the 19th of March, 1873, W. I;. Greenleaf was 
appointed collector of the board, and H. W. Harmon was elected 
secretary. George W. Smith resigned the office of treasurer on 



76 

the first day of December;, 1870, and J. Irving Pierce was 
elected to fill the vacancy. Mr. Pierce's term of office having 
expired. Isaac X. Hardin was elected treasurer on the 18th day 
of .March, A. D. 1871. On the expiration of his term, in March, 
1872, J. Irving Pierce was elected his successor. George W. 
Gage continued to hold the office of auditor until the 13th day 
of March, 1871, when he resigned, and L. B. Sidway was chosen 
to fill the vacancy. Mr. Sidway held the office of auditor until 
March, 1875, when George W. Gage was again elected auditor, 
and served until his death, on the 24th Sept., 1875. The board, 
as at. present organized, consists of Chauncey T. Bowen, presi- 
dent, L. B. Sidway, auditor, Paul Cornell, James Morgan, with, 
a vacancy in the board yet to be filled by the circuit judge. 

Soon after the organization of the board in 1869, and within 
the time limited by the act establishing the South Park, the 
lands designated in said act were .formally selected by the com- 
missioners, and an accurate description of the same placed upon 
their records. Immediately thereafter, the board examined the 
said lands and made diligent inquiry in relation to their value. 
The probable cost of the lands was estimated at $1,865,750, and 
an application was made to the circuit court for the appointment 
of three assessors to assess that amount upon the property bene- 
fited. This application having been refused, the board applied 
for a mandamus to the Supreme Court. The case made was 
argued before the Supreme Court, and a mandamus awarded. 
Thereupon the circuit court appointed assessors, who entered im- 
mediately upon the performance of their duties. It was after- 
wards ascertained that the cost of the lands composing the park- 
would considerably exceed the original estimate; and the board, 
having been authorized by the act of June 16th, 1871, to revise, 
enlarge and correct the estimate which had been made, it was 
decided, upon further examination and inquiry, to increase the 
assessment to $3,320,000. 

The board, during their administration, have succeeded in 
purchasing the larger portion of the lands; the part not yet pro- 
cured being about 100 acres in the East division of the park, 
the frontage from State street to Wabash avenue on the South 
side of Pavilion Boulevard, and a portion of the Western avenue 



77 

frontage. The board have acquired title to, and paid for the 

following amount of lands: 

Acres. 

East Division of Park 295 

Midway Plaisance 60 

West Division of Park 'i'.'A 

Grove Parkway (1% miles front) 22 

Grand Boulevard (2 miles long) 24 

Pavilion Boulevard ( 3y 2 miles long) 42 

Twenty Acre Park 6 

780 

They have also acquired title to, partially paid for, and as- 
sumed liabilities mi, the following amount: 

Acres. 

East Division of Park 200 

Midway Plaisance 20 

West Division of Park 28 

Grand Boulevard 2 

Twenty Acre Park 3 

Western Avenue (frontage % mile) 12 

265 

At this date, the abstracts are being examined for about one- 
half mile more of frontage on Western avenue, preparatory to 
purchase, leaving about one and one-quarter miles of frontage on 
Western avenue still to be acquired. The board hope, by 
Spring, to procure the Western avenue lands, and lav them out, 
and improve them to some extent, as the property holders of 
that section express themselves very favorably to the project, 
and seem willing to further the wishes of the commission. In 
addition to the boulevard, the board propose to make a twenty- 
acre park at the junction of Pavilion Boulevard and Western 
avenue, and a portion of the land has already been procured. 
The failure of the commission to collect the delinquent portion 
of the park tax, lias been of great detriment to them in their 
labors, as the money, if collected, would have gone directly to 
the improvement of the grounds, and the work on the park would 
have been forwarded proportionally faster, to say nothing of 
the expense incurred for interest on temporary loans, &c. It 



78 

is a matter of regret to the board that the law affords no present 
means of hastening the collection of the delinquent taxes. 

After the fire of 1871, the hoard were of the opinion that the 
Park tax, if called for to the greatest extent of the law, would 
he burdensome to tax payers, and that it would be considered 
unjust to ask for an appropriation for purposes of recreation, 
when the necessities of the community called for so large an 
expenditure. The board therefore concluded to make the tax 
for an amount simply sufficient to cover their interest, namely: 
$150,000. 

As it since appears, it was unwise, for the business of the fol- 
lowing year was unprecedentedly good, and time has proved that 
the taxes of that year were paid more cheerfully than at any 
time since. The result was a loss of, at least $100,000, to the 
Commission. 

Note. — The delinquent taxes for the previous years are as fol- 
lows: 

Total tax levy 1870 $299,200.62 

Total tax levy 1871 149,501.89 

Total tax levy 1872 299,535.25 

Per tax 1869, double payments, interest on forfeitures, etc. 516.80 

$748,754.53 

Commissions paid, 1870 $13,757.87 

Commissions paid, 1871 2,537.23 

Commissions paid, 1872 3,984.54 $ 20,279.64 

Cash received on 3 year Warrants 637,178.76 

Errors and abatements, 1870 22,999.58 

Errors and abatements, 1871 22,703.26 

Errors and abatements, 1872 45,593.29 91,296.13 



$748,754.53 

It will be seen by this, that the delinquent taxes for the three 
years amount to over one-eighth of the total levy; adding com- 
missions paid to town and county collectors, the actual deficit is 
nearly fifteen per cent, of the amount allowed by law. In addi- 
tion to this, is the amount delinquent for 1869, amounting to 
nearly $40,000, which is wholly lost; the fire of 1871 having 
wiped it out. The total tax levy for 1873 is about $302,000, 
of which there is no report to date, but as nearly as can be esti- 



TO 

mated, will be delinquent about $75,000. It is hoped that a 
number of these old cases will be reached at the coming' term 
of court. 

In the East Division of the park the Commission have met 
their greatest difficulty in gaining a title sufficient to warrant 
their proceeding in the work of improvement. The very fact 
that the surface of the ground admits of no other way of laying 
out, except in continuous lakes and lagoons, as planned by Olm- 
stead & Vaux, in their original draught of the park, prevents 
them from beginning the work without the possession of the 
whole tract. The board, at the present time, are endeavoring 
to further the condemnation proceedings in sections 13 and 24, 
and when once the title to the land is secure, the work of im- 
provement can be pushed forward much faster than elsewbere, 
from the natural advantages of the ground, and its line growth 
of timber. 

Nearly four-fifths of the West Division of the park is com- 
pleted, as far as the labor is concerned. About 350 acres have 
been tilled and seeded down, and planted with forest trees, of 
from 3 inches to 12 inches in diameter. The portion known 
as the "South Open Green," is now laid out as a lawn, and it 
is probably the most extensive one in America. 

The Commission have built and completed the four main 
boulevards, viz., Grand Boulevard, Drexel Boulevard, Pavilion 
Boulevard, and Oakwood Boulevard, with a complete and per- 
fect system of sewerage, in all, ll 1 /-* miles of road. 

They have furnished the connecting drive between the East 
and West divisions of the park, one mile in length, and 40 feet 
in width. 

They have also completed the Northern drive in the East park, 
three-fourths of a mile long, and 40 feet wide, running from 
the Midway Plaisance to the lake shore ; through the parks them- 
selves, some 3y 2 miles of drive have been completed; about 
three-fourths with Joliet gravel, and the remainder with clay 
and lake shore gravel. About six and one-half miles of walks, 
of clay and lake shore gravel, have been finished. 

The boulevards have all been planted with large forest trees, 
and five years ago, the Commission established a nursery in the 



80 

"West park, in which such young trees and shrubs as were con- 
sidered desirable for park purposes, were planted. This nursery 
has been a complete and perfect success, and now furnishes sev- 
eral thousand first class trees each season, which are planted in 
their proper places on the parks, their places in the nursery 
being filled with young stock, that in two or three years is ready 
for park planting. By this means the park will eventually all 
be planted with thoroughly acclimated trees of the best quality, 
at the lowest possible cost. 

The floral department and botanical garden, are well estab- 
lished, with good hot-houses, steam forcing apparatus, &c. The 
board are now enabled to furnish themselves all their own plants 
for these walks and drives. The general plan of the Commis- 
sion for constructing and improving the park, was to begin at 
a point nearest the largest population, and make all improve- 
ments continuous to the farthest point. And they have made 
no improvement at any point that could not be reached from 
the city over park roads. 

The many difficulties connected with the obtaining of the land 
for park purposes, resulting from the exorbitant prices de- 
manded by property owners as soon as the park bill entered into 
effect, and the vexatious delays consequent from the slow process 
of law where the parties interested could not agree, have hin- 
dered to a great extent, the Commission in their improvements, 
and the difficulty of procuring the payment of taxes and assess- 
ment promptly, has caused them much regret that their regular 
improvement could not progress as fast as they themselves would 
have desired. But they have at last succeeded in getting a park 
with its attendant drives, and time will have to complete in the 
growth of its trees and shrubbery, what they have at last suc- 
ceeded in starting. 



SI 



IN MEMORIAM 

Geo. W. Gage was appointed South Park Commissioner on 
the 16th day of April, 1869. On the organization of the Board 
on the 30th of April, 1869, he was chosen auditor, and served 
to the expiration of his term, which expired on the 1st of March, 
1871. 

On the first of March, 1871, he was reappointed, to serve for 
five years. He resigned as auditor on the 13th day of March, 
1871. 

He was again elected auditor on the 6th day of March, 1875, 
which office he tilled until his death on the 24th day of Septem- 
ber, 1875. 

During his whole time of service in the South Park Commis- 
sioners, he served as chairman of the construction committee. 
The roadways and boulevards of the park, and their attendant 
system of sewerage, stand as monuments of his ability and 
energy. 

The following resolutions were adopted by the Board of South 
Park Commissioners, on the 25th day of September, 1875 : 

Whereas, It has pleased Divine Providence to remove from 
our midst one of the members of the South Park Commission- 
ers, Geo. W. Gage, late Auditor of the Park Board; and 

Whereas, Mr. Gage has been ever since the organization of 
the Board in 1869, an energetic, thorough and intelligent mem- 
ber of the Commission, ever having the interests of the public 
at heart, firm to all, forgetting the rights of none, and a faith- 
ful, honest and efficient officer; therefore 

Resolved, That the Secretary be, and he is hereby instructed 



82 

to close the office of the South Park Commission for this day, 
out of respect to his memory. And further 

Resolved, That the Commissioners hereby tender to the friends 
of the deceased their heartfelt sympathy in their bereavement, 
assuring them, as well as the public, that during the six years of 
his official life as Park Commissioner, he has ever had the in- 
terests of the public at heart, while his judgment and experience 
were ever found of great benefit to the Commission associated 
with him. 

Resolved, That the Secretary be, and he is hereby directed to 
send to the family of the deceased a copy of these resolutions, 
and to spread the same on the records of the Commission. 



S3 



OPINION OF THE SUPREME COURT OF ILLINOIS, 

Northern Grand Division, 

in a cause submitted at the september term thereof, 1875. 

No. 278. 



THE PEOPLE, ex rel. 
HENRY B. MILLER, etc. 



vs. 



P. H. BRISLIN, et al. 



Appeal from County Court 
of Cook County. 



Filed Jan. 21st, 1876. 



Opinion by Sidney Breese, Justice. 

This is an appeal from the County Court of Cook County, 
prosecuted on behalf of the People of the State, in the name of 
Henry B. Miller, exorcising the powers, and performing the 
duties of county treasurer of Cook County, and ex officio col- 
lector of the same; and several grave questions are raised on 
the record. 

It appears the relator, Miller, as county treasurer of Cook 
County, applied to the County Court for judgment for the third 
installment of a special assessment made by the South Park 
Commissioners, pursuant to an act of the General Assembly of 
this State, entitled "An act to enable the corporate authorities 
"of two or more towns, for park purposes, to issue bonds in re- 
"newal of bonds heretofore issued by them, and to provide for 
"the payment of the same; to make, raise, and collect a special 
"assessment on contiguous property for benefits by reason of 
"the location of parks and boulevards, and to make necessary 
"changes in their location," in force July 1, 1871. This is a 
public law, applicable to every county in the State, and is not 
amendatory of any other act. (R. S. 1874, Ch. 105.) Prior leg- 
islation had made provision for the location and maintenance 



84 

of a public park for the towns of South Chicago, Hyde Park and 
Lake (Sess. Laws 1869, 1 Vol., 358), which was amended and 
supplemented by an act passed 16th April of the same year. 
(lb., 366.) The first mentioned act was submitted to a vote of 
the people of these towns, and it was accepted by them, by ma- 
jorities in each of the towns. By it, the location of the park 
was fixed, and its limits defined. The subsequent act made 
some inconsiderable changes in the first act, and made more 
definite the description of the park, and legalized and confirmed 
the acts therefor. 

Pursuant to the provisions of these acts, park commissioners 
were appointed by the Governor, who entered upon the discharge 
of their duties. Soon thereafter, a question as to their powers 
and duties was raised in this Court, and settled by its adjudica- 
tion. 

The People ex relatione Wilson v. Salomon, 51 111.. 37. 

This case holds that under the first named act the towns of 
South Chicago, Hyde Park and Lake were erected into a park 
district, and the people of those towns, having by vote accepted 
its provisions, the board of park commissioners thereby created 
became a quasi municipal corporation, in whom it was competent 
for the legislature to vest the power to assess and collect taxes. 
within the park district so created, for the special corporate pur- 
pose of the creation of a park. Accordingly, it was held, it was 
the duty of the county clerk of Cook County to place the amount 
required for such purpose, as estimated by these commissioners 
in the tax warrants for the towns embraced in the district. Es- 
timates have been made by the commissioners from time to time, 
lands purchased, and bonds issued therefor, and the money raised 
by their sale expended in completing the park. To aid the 
commissioners to advance the work, the act first above cited, 
in force July 1, 1871, was passed, and in pursuance of its pro- 
visions, the commissioners made an estimate of the probable cost 
of lands taken, and to lie taken for the park, together with the 
expenses of obtaining them, and the cost of making and col- 
lecting a special assessment to pay the cost of these lands, and 
the expenses attending their acquisition. The aggregate was 
estimated at three millions, three hundred and twenty thousand 
dollars. 



85 

By the first section of the act of 1871, the park commission- 
ers are declared to be corporate authorities of the towns which 
have united in the establishment of a park, and are authorized to 
discharge the duties imposed upon them as a corporation or 
otherwise. By section 3 power is given to these corporate au- 
thorities to make the improvements, establish and maintain them 
by special assessment or special taxation of contiguous prop- 
erty, and they are required to apportion the estimates upon the 
lands situated in those towns which the corporate authorities 
may deem benefited by reason of tins local improvement, as near 
as may he, in proportion to the benefits resulting thereto. Ten 
days 5 notice to parties interested to be given by the corporate 
authorities, in one or more newspapers, of the time and place 
of the meeting to make the assessment, when they can he heard 
touching any matter connected with the assessment. 

The same section gives a rule to guide the authorities in 
making the assessment, and when completed, it is to he signed 
by these authorities, or by a majority of them, and returned to 
the Circuit Court of the county in which such towns are situ- 
ated, and tiled with the clerk of that court, of which ten days' 
notice is to he given by the authorities, and the further notice 
that they will apply on a day named to the Circuit Court for 
a confirmation of the. assessment. The requisites of this notice 
are given in the section. 

It is further provided, when it shall appear to the court that 
proper notice has been given, it shall have power to hear, 
adjudge, and determine the matter of said application, and all 
matters connected therewith. 

The corporate authorities, observing all the requisites of this 
act, made their assessment roll, which was duly reported to the 
Circuit Court of Cook County, and filed with the clerk thereof, 
and at the June term, 1872, of said court, an order of con- 
firmation of the assessment was duly entered by the court, the 
court finding that all the preliminary steps had been taken by 
the corporate authorities, and that the assessment was made in 
proportion as near as may be, to the benefits resulting from 
the improvement to each separate lot, block, or parcel of land 
mentioned in the assessment roll. And the court further found 



86 

that all and every of the proceedings of the commissioners in 
the premises, were regular, valid, and in conformity with law, 
and that they have done all things required of them by law, to 
make this special assessment a legal, just, valid, and binding 
assessment, in whole and every part thereof, and that the same 
and every part thereof, was a just and fair assessment in the 
premises. 

It was therefore ordered, adjudged, and determined, by the 
court, that the assessment, and every part thereof, as set forth 
in the assessment roll filed herein be, and the same was in all 
respects confirmed, and should be taken to stand good and valid, 
and effective, to all intents and purposes, according to the form 
and meanings thereof, as made and returned to the court by 
the South Park Commissioners, and certified by them. 

The court further, in pursuance of this same section, divided 
the assessment into annual installments, and fixing the first in- 
stallment, and dividing the residue of the assessment into seven 
equal installments, bearing interest at the rate of seven per 
centum per annum. 

These installments were ordered by the court to be extended 
separately, under each successive year on the assessment roll, in 
such a manner as to show the separate amount chargeable upon 
the several lots, blocks, and parcels of land contained in the 
tabulated statement in the assessment roll, the court reserving 
all further matters relating to the division into installments, 
and the extensions thereof into and upon the assessment roll, 
until the same shall be ostensibly carried out and extended 
agreeably to the order of the court, of which all parties entitled 
to be heard were required to take notice. 

The court having apportioned the gross amount of the esti- 
mate, the park commissioners made a tabulated statement there- 
of, showing the amount chargeable on each lot, block, and parcel 
of land, according to this apportionment and installments, and 
reported the same to the Circuit Court at the August term, 
1872, whereupon the court entered an order confirming in all 
respects the apportionments of the assessment by the commis- 
sioners, ordering that the division into eight installments, and 
the estimations thereof as shown upon the assessment roll and 



87 

tabulated statement, be in all respects ratified, approved, and 
confirmed, and the came he held and taken as good, valid, and 
effectual, to all intents and purposes. By the same section (3), 
the clerk of the court was required to deliver to the corporate 
authorities a certified copy of such assessment, so confirmed by 
the court, which is declared to be their authority to collect the 
same. 

It is also provided in this section, if the assessments, or any 
part thereof, so confirmed, shall not be paid at the time or 
times fixed by the Circuit Court, it shall be the duty of the 
corporate authorities to return to the county treasurer, or to 
some general officer of the county having authority to receive 
State and county taxes, a list of the lots, blocks, and parcels of 
land so assessed, upon which the assessment should remain un- 
paid, and the amount unpaid upon each lot, block, and parcel 
of land. 

Appellee and others being delinquent in payment of the third 
installment of the assessment, the park commissioners made a 
return of the delinquent list to the county treasurer, and by law 
ex officio county collector, of the amount due and unpaid of this 
installment of the assessment, and lie. having altered the de- 
scriptions in the return to conform to the descriptions given in 
the tax book for the State and county taxes, as authorized by 
the act of May 2, 187 '3, entitled "An act in relation to the col- 
"lection of taxes and special assessments," he duly advertised 
the delinquent real estate assessed, that he would apply for 
judgment to the Cook County Court. 

It is to the objections made in that court to the rendition of 
a judgment against the lots and real estate of appellees, our 
attention is called. They are fifty in number, some going to 
the form of the proceedings, and others to the merits. 

The court refused the application for judgment, and the Peo- 
ple appeal. The merits of the controversy are presented in the 
points argued by appellee in this Court, and are involved in 
objection numbered forty-eight, which is as follows: 

"Because the act entitled c An act to enable the corporate 
"authorities of two or more towns, for park purposes, to issue 
"bonds/ etc.; approved June 16, 1871, under and by virtue of 



88 

"which said assessment was levied and confirmed, is void and 
"unconstitutional', for the reason that the same has never re- 
ceived the assent or approval of the Legal voters of said towns 
"intended to be affected thereby; and for the reason that it au- 
thorizes the issue of a new and unlimited amount of bonds, 
'•hearing interest at seven per cent., payable annually, for the 
"payment of which, both principal and interest, the lands and 
"lots of the objectors are hound; and for the further reason that 
"it authorizes interested parties to levy assessments upon lots 
"and lands in said town; and for the reason that it authorizes 
"the Circuit Court to confirm and establish the assessment when 
"made, without personal notice to the parties interested; and for 
"the reason that it imposes heavy burdens upon the property 
"owners and legal voters of said towns, to which they have 
"never in any manner assented; and for the reason that said act 
"is repugnant to the terms of the constitution ; and all proceed- 
ings under the same are null and void." 

We have given to the objections, and the argument in their 
support, as much consideration as possible, and can not think 
they are tenable. 

The first clause of the objections to the act of 1871, enlarging, 
so to speak, the powers of the corporation of park commissioners, 
that the same has not been submitted to a vote of the people of 
the towns composing the park district, and received the ap- 
proval of the voters thereof, has in some respects, been consid- 
ered by this Court, in Bank of the Republic v. Hamilton County, 
21 111., 53. 

The fifteenth proposition for discussion in that case, was this: 
whether the said amendatory act of 1857, in imposing additional 
burthens upon the banks, without any corresponding advantage 
or benefit conferred, and not authorized at the time of the pass- 
age of the general hanking laws, in its adoption by the people, 
is not wholly null and void, and in conflict with the Constitu- 
tion of the United States, as impairing the obligations of con- 
tracts. 

To understand the force and bearing of this proposition, it 
will be remembered that clause 5 of Article 10 of the Constitu- 
tion of 1848, title. "Corporations/" has this provision: "No act 



89 

"of the Genera] Assembly, authorizing corporations or associa- 
tions with banking powers, shall go into effect, or in any man- 
"ner be in force, unless the same shall be submitted at the gen- 
eral election next preceding the passage of the same, and be 
"approved by a majority of all the votes east at said election, 
"for and against such law." 

The General Assembly, at the session of 1851, passed an act 
to establish a general system of hanking, containing forty-one 
sections. .Section 39 thereof provided for the submission of 
the act to a vote of the people at the general election to be held 
on the Tuesday next after the first Monday of November, 1851, 
and providing if the same he approved by a majority of all the 
votes cast at the election for and against the same, it should go 
into effect, and be in force from and after the date of the elec- 
tion. (Sess. Laws 1851, p. 163.) 

The act was approved by a vote of the people at that election, 
and 1 hereupon became a law. This Law contained all the pro- 
visions then deemed necessary to the establishment of a propei 
hanking system. 

At the next session held in 1853, an act was passed, supple- 
mental to, and explanatory of this act, by which important 
changes were made, and in 1857, other important changes were 
made in the law, giving rise to the cast- then in judgment. This 
act is entitled: "An act to amend 'an act to establish a general 
"system of banking, and the acts amendatory thereof.' ' ; (Sess. 
Laws 1857, p. 23.) 

The sixth section of this law made a great change in the mode 
of ascertaining the value of the property of the hanks, on which 
it was to he assessed, from that provided by the tenth section of 
the general banking law, under which the appellant bank was 
organized. 

It was contended in that case, that this change was void under 
the clause of the constitution we have cited, it not having been 
submitted to a vote of the people for their approval, and that it 
was a violation of their chartered rights. 

These questions were duly considered, and this Court said: 
While we must he unyielding in resistance to encroachments 
upon chartered rights which may he in the nature of contracts, . 



90 

we must not forget that these artificial beings must be subject 
to government, and be subordinate to legislation, precisely the 
same as an individual or natural person. 

On the question that the act was invalid, because it was not 
submitted to the people, the court had no doubt of its validity, 
and it was so determined. We think the reasoning and conclu- 
sions reached in this case dispose of so much of objection forty- 
eight. 

There is, certainly, force in the argument of appellee, that, as 
the legislature had not of itself the power to create "corporate 
"authorities," without a vote of the people, then if that vote was 
obtained subject to certain limitations and conditions, those 
limitations and conditions must lie observed by, and are binding 
upon, both the legislature and the corporate authorities. 

This was the kind of argument used in the ease of The Bank 
of the Republic, supra, on which we have commented. 

The park district, when established in pursuance of the act 
creating it, became a municipality for certain purposes, and as 
such came within the domain of legislation. The powers of the 
corporate authorities of this municipality are subservient to the 
legislative power, precisely as in the case of other municipalities, 
and are not interfered with by the present State Constitution ; 
on the contrary, their existence is implied by the terms of sec- 
tion 9 of Article 9, giving them powers to make special assess- 
ments for local improvements, or by taxation of contiguous 
property, or otherwise. 

This act of 1871 in no degree trenches upon this article, but 
is in conformity therewith. 

The argument seems to go to this extent, that the Legislature 
cannot enlarge, and if they cannot enlarge, cannot curtail the 
powers of public corporations. In all else, save interfering with 
such rights as may belong to the domain of contracts, the legis- 
lature is supposed to have plenary powers. 

Should a city, by a popular vote, adopt the act of 1872 for the 
incorporation of cities and villages, that act would, eo instanti, 
become the charter of the city or village adopting it. It will 
hardly be contended that amendments to this act not invading 
the contract rights of the city or village, will be invalid and 



91 

nugatory, if not submitted to a vote of the people. We think 
it is a fair deduction from al] the constitutional provisions, and 
from the very nature of our government, that changes deter- 
mined by the exigency of the times in regard to municipal cor- 
porations are within the domain of ordinary legislation. 

As to the point that these commissioners were never author- 
ized by the people of these towns to levy a tax of more than 
three hundred thousand dollars, it will be observed that amount 
can be levied annually. That sum is not the ne plus ultra. 
They have power to assess a sufficient amount to carry on the 
enterprise, and if only $300,000 are called for annually, no 
matter what the ultimate expenditure may lie, such a call is 
legitimate, and that amount can be annually assessed, and it is 
so assessed by the action of the Circuit Court, dividing the gross 
assessment into eight annual installments. It is clear the ob- 
ject of all this legislation, from 1869 to June 16, 1871, was to 
provide a public park, and it was intended by the legislature to 
construct proper machinery for such purpose. True, the legis- 
lation to effectuate this intent must not contravene the consti- 
tution. To say this act of 1871 contravenes clause 13 of Article 
1, providing that no act hereafter passed shall embrace more 
than one subject, and that shall lie expressed in the title, is 
going very far. What was the subject of this legislation? A 
public park, and its then existing concomitants. Land for the 
park was to be acquired — contracts made therefor — bonds issued 
for the cost and expenses — assessments to pay existing and fu- 
ture liabilities — these were the concomitants which the legisla- 
ture had in view, in passing the act of 1871, with the title it 
bears, and we cannot see that it is obnoxious to any objection. 
This Court has gone very far to uphold statutes supposed to 
have been within this objection. The case of O'Leary v. Cook 
County, 28 111., 534, is a conspicuous instance. The body of the 
act in question is germane to the title of the lull. 

But the point is pressed, that this assessment is not on con- 
tiguous property. This question, and all others, bringing up the 
levy and assessment, have been passed upon by the Circuit Court, 
and are res judicata, and cannot now be made in this Court. 
Upon them there is a judgment pronounced by a court of com- 



92 

petent jurisdiction, and there they must rest. The fact that 
the commissioners who made the estimates and assessments were 
property owners in the towns, could not disqualify them. They 
were made by the law the tribunal for the purpose, and were 
required to take an oath faithfully and impartially to discharge 
their duties for the public interest. We are of opinion they were 
not disqualified — the law appointing them qualified them. 

The objection made by appellee, that two judgments have 
been rendered against the same lands in the same proceeding. 
is not clearly understood. \n this case, there was no judgment 
rendered for these assessments, and that is the cause of com- 
plaint here made by the party claiming the judgment. Appellee 
has net assigned any cross errors, and we do not see how this 
objection can be made. 

A further objection is made, that the county treasurer as 
collector had no power to act in this matter, and to apply for 
judgment, as the County of Cook is not under township organi- 
zation. Not being so, the sheriff of the county is ex officio the 
collector, and the application for judgment should have been 
made by him. 

That Cook County is under township organization, reference 
is made to clauses 6 and 7, of Article 10 of the Constitution. 

By a fair implication from the language used in these sec- 
tions, the County of Cook is not taken out of the class of coun- 
ties under township organization, that being the condition of the 
county before the adoption of the Constitution. And this is 
strengthened by reference to section 23, Ch. 34, title "'Counties." 
So much of that section as is applicable, is as follows: 

"The powers of the county as a body corporate or politic shall 
"be exercised by a county board, to wit: .In counties under 
"township organization (except the county of Cook), by a board 
"of supervisors, &c, in the county of Cook, by a board of county 
"commissioners, &c, in counties not under township organiza- 
tion, by the board of county commissioners." (Page 306.) 
And also by clause 11, of Article 11, of Chap. 139, title "Town- 
ship Organization. " "The supervisors of towns in Cook County 
"shall perform the same duties as supervisors of towns in other 
"counties under township organization, except that they shall 



93 

"not bo members of the county board, or exercise any of the 

"powers thereof." (Page 1080.) We think it a fair inference 
from all these provisions, that the county of Cook must be con- 
sidered as under township organization, and consequently the 
treasurer of the county was the proper person to make this ap- 
plication for judgment. 

After a careful examination of this record, and full consid- 
eration of the points raised upon it, we find no ground justify- 
ing the County Court in refusing judgment on the application of 
the county treasurer for judgment. He had ample power by 
section 178 of the Revenue Laws. 

The judgment of the County Court is reversed, and the cause 
remanded to that court, with directions to enter judgment, not- 
withstanding the objections. 

I, Cairo D. Trimble, Clerk of the Supreme Court, in and for 
the Northern Grand Division of the State of Illinois, do hereby 
certify that the foregoing is a true copy of the final opinion of 
the said Supreme Court in the above entitled cause, of record 
in my office. 

In testimony whereof, I have set my hand, and affixed the 
seal of the said Supreme Court, at Ottawa, this 22d day of Janu- 
ary, in the year of our Lord one thousand eight hundred and 
seventy-six. 

C. I). TEIMBLE, 

[seal.] Cleric of the Supreme Court. 



95 



OPINION OF THE SUPREME COURT OF ILLINOIS, 

Northern Grand Division, 

in a cause submitted at the september term thereof, 1875. 

No. 254. 



FRANCIS B. LAW 

vs. of Cook Comity 



Appeal from County Court 



THE PEOPLE, ex rel. 
HENRY B. MILLER, etc. 



Filed Jan. 21st, 1876. 



Opinion by John M. Scott, Chief Justice. 

This appeal is from a judgment on a special assessment for 
park purposes. Under the reasoning in The People ex rel. v. 
Buslin et ah, decided at the present term, the assessment and 
judgment are valid, and we will not discuss the questions raised 
further in this opinion. 

The description of the property given is sufficiently accurate 
and definite for all the purposes of the assessment. According 
to the doctrine of Colcord v. Alexander, 67 Illinois, 581, any 
description adopted in a deed by which the premises intended to 
be conveyed may be established and identified is sufficient, and 
a grant, or devise, will only be declared void for uncertainty, 
when, after resort to oral proof, it still remains a matter of mere 
conjecture what was intended by the instrument. It is appre- 
hended the sale may be less stringent, as to description of prop- 
erty for taxation, than in a grant, or conveyance, intended to 
pass the title absolutely. Any description by which the prop- 
erty may be identified by a competent surveyor with reasonable 
certainty, either with or without the aid of extrinsic evidence, 
will be sufficient. 



^ 



90 

In this case, we think any competent surveyor, even from the 
description given, without any extrinsic aid, could locate and 
determine what property was assessed, and that, under all the 
authorities, is sufficient. 

Objection is made, that the delinquent list, and the affidavits 
to the record of the same, are insufficient. We are unable to per- 
ceive in what, particular there is any defect. According to the 
decision in Andrews \. The People, ex rel., (Sept. T. 1874), the 
general revenue act of ISC' necessarily worked a repeal of all 
prior conflicting laws, whether found in the provisions of gen- 
eral laws, or in those of special city charters. The county col- 
lector was, therefore, the proper party to make the affidavit. 
It is in due form, and is sufficient. The fact the commissioners 
may have attached their affidavits, also, does not vitiate the 
return. 

The judgment must be affirmed. 

Judgment affirmed. 

I, Cairo D. Trimble, Clerk of the Supreme Court, in and for 
the Northern Grand Division of the State of Illinois, do hereby 
certify, that the foregoing is a true copy of the final opinion of 
tlie said Supreme Court in the above entitled cause, of record 
in my office. 

In testimony whereof, I have set my hand and affixed the seal 
of the said Supreme Court, at Ottawa, this 24th day of January, 
in the year of our Lord one thousand eight hundred and seventy- 
six. 

C. D. TRIMBLE, 

[seal.] Clerk of the Supreme Court. 



H 27 4 84 



i'/\'^W'>n.' 







V e o n a 




















. v*' 





,/^A >--^'-*~ ,o\.ii^%% 








> . S • • > *>\ Av t • 




°-Z- °" A" <* 7 ^»* ^ % ••.;•" A 



§V * ^ *; 



















*•.% /safe*"* ^ .*^k-\ <?'jti&?°» A 

£*• ° X.-^i-% C0*,.^&.*°o ^.'J^.% 




r-S 



^0* 







9* ... 




by 





Vv 

" *r> v 

\ 








.0 







